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Story by Oregon Herald staff
Published on Saturday July 18, 2020 - 1:23 PM
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PORTLAND, Oregon - Federal customs detained a demonstrator in Portland in a video circulating online that showed two men in apparent military garb taking a young man wearing all black into custody, defending the apprehension by describing the man as being suspected of attacking federal agents and property.

This defense came as federal authorities were under criticism for their tactics from elected officials, civil rights activists and demonstrators, including one in Portland who described being "terrified" during a similar encounter.

In a statement on Friday, U.S. Customs and Border Protection said that its agents had taken the action in the video and that they "had information indicating the person in the video was suspected of assaults against federal agents or destruction of federal property."

When the agents approached him, CBP said, "a large and violent mob moved towards their location. For everyone's safety, CBP agents quickly moved the suspect to a safer location for further questioning."

The agency also disputed suggestions that they were operating only as unidentified federal agents.

"The CBP agents identified themselves and were wearing CBP insignia during the encounter," CBP said in its statement. "The names of the agents were not displayed due to recent doxing incidents against law enforcement personnel who serve and protect our country."

A similar encounter left Mark Pettibone, a 29-year-old demonstrator, shaken, he told The Washington Post in an interview.

Pettibone said he was scared when men in green military fatigues and generic "police" patches jumped out of an unmarked minivan early Wednesday. Pettibone said that when several men in fatigues approached him, his first instinct was to run.

He did not know whether the men were police or far-right extremists, who frequently don military-like outfits and harass left-leaning protesters in Portland. In his account, the 29-year-old said he made it about a half-block before he realized there would be no escape.

Then, he sank to his knees, hands in the air.

"I was terrified," Pettibone said. "It seemed like it was out of a horror/sci-fi, like a Philip K. Dick novel. It was like being preyed upon."

He was detained and searched. One man asked him if he had any weapons; he did not. They drove him to the federal courthouse and placed him in a holding cell, he said. Two officers eventually returned to read his Miranda rights and ask if he would waive those rights to answer a few questions; he did not.

Almost as suddenly as they had grabbed him off the street, the men let him go. The federal officers who snatched him off the street as he was walking home from a peaceful protest did not tell him why he had been detained or provide him any record of an arrest, he told The Post. As far as he knows, he has not been charged with any crimes. And, Pettibone said, he did not know who detained him.

His detention, which was first reported by Oregon Public Broadcasting, and videos of similar actions have raised alarm bells for many. Legal scholars questioned whether the detentions pass constitutional muster.

"Arrests require probable cause that a federal crime had been committed, that is, specific information indicating that the person likely committed a federal offense, or a fair probability that the person committed a federal offense," Orin Kerr, a professor at University of California at Berkeley Law School, told The Post. "If the agents are grabbing people because they may have been involved in protests, that's not probable cause."

During a video news conference Friday, Portland Mayor Ted Wheeler twice called the federal police in his city President Trump's "personal army" and said that he is joining a chorus of Oregon's elected officials in sending a clear message to Washington: "Take your troops out of Portland."

"This is part of a coordinated strategy out of Trump's White House to use federal troops to bolster his sagging polling data, and it is an absolute abuse of federal law enforcement officials," Wheeler said. "As we were starting to see things de-escalate, their actions last Saturday and every night since have actually ratcheted up the tension on our streets."

Federal officers from the U.S. Marshals Service and Department of Homeland Security have stormed Portland's streets as part of Trump's promised strong response to ongoing protests. Local leaders expressed alarm at news of Pettibone's detention and echoed calls for the feds to leave that have grown stronger since Marshals Service officers severely wounded a peaceful protester on Saturday.

"A peaceful protester in Portland was shot in the head by one of Donald Trump's secret police," Sen. Ron Wyden (D-Ore.) wrote in a Thursday tweet that also called out acting DHS secretary Chad Wolf. "Now Trump and Chad Wolf are weaponizing the DHS as their own occupying army to provoke violence on the streets of my hometown because they think it plays well with right-wing media."

Civil rights advocates suggested the Trump administration is testing the limits of its executive power.

"I think Portland is a test case," Zakir Khan, a spokesman for the Oregon chapter of the Council on American-Islamic Relations, told The Post. "They want to see what they can get away with before launching into other parts of the country."

Jann Carson, interim executive director of the American Civil Liberties Union of Oregon, called the recent arrests "flat-out unconstitutional" in a statement shared with The Post.

"Usually when we see people in unmarked cars forcibly grab someone off the street, we call it kidnapping," Carson said. "Protesters in Portland have been shot in the head, swept away in unmarked cars, and repeatedly tear-gassed by uninvited and unwelcome federal agents. We won't rest until they are gone."

Nightly protests have seized Portland's downtown streets since George Floyd's death in Minneapolis in late May. For more than six weeks, Portland police have clashed with left-leaning protesters speaking out against racism and police brutality. Tear gas has choked hundreds in the city, both protesters and other residents caught in the crossfire. Protesters have spray-painted anti-police messages on the Mark O. Hatfield federal courthouse and Multnomah County Justice Center, which serves as the local jail and a police headquarters.

After Trump sent federal officers to the city, allegedly to quell violence, tensions escalated. The feds have repeatedly deployed tear gas to scuttle protests, despite a newly passed state law that bans local police from using the chemical irritant except to quash riots. On Saturday, federal agents shot a man in the face with a less-than-lethal munition, fracturing his skull. Local officials, from the mayor to the governor, have asked the president to pull the federal officers out of the city.

Federal officers severely wounded a Portland protester. Local leaders blame Trump.

"I am proud to be among the loud chorus of elected officials calling for the federal troops in Portland's streets to go home," Portland Commissioner Jo Ann Hardesty said in a statement shared with The Post on Sunday. "Their presence here has escalated tensions and put countless Portlanders exercising their First Amendment rights in greater danger."

Pettibone says he was simply exercising his free speech rights on Wednesday when he was detained. He and a friend were walking to a car to drive home after a relatively calm demonstration in a nearby park. He said he did not do anything to instigate police that night, or at any of the other protests he had attended over the past six weeks.

"I have a pretty strong philosophical conviction that I will not engage in any violent activity," he told The Post. "I keep it mellow and try to document police brutality and try to show up for solidarity."

DHS did not immediately respond to a request for comment Thursday night, and likewise did not answer questions from Oregon Public Broadcasting. The Marshals Service told the radio station its officers had not arrested Pettibone and said the agency always keeps records of its arrests.

Trump has cheered harsh tactics by officers in Portland, and the acting Homeland Security secretary has vowed to keep federal forces in Portland until local leaders "publicly condemn what the violent anarchists are doing."

"We've done a great job in Portland," Trump said at a news conference on Monday. "Portland was totally out of control, and they went in, and I guess we have many people right now in jail. We very much quelled it, and if it starts again, we'll quell it again very easily. It's not hard to do, if you know what you're doing."

Yet the scene on Portland's streets late Thursday reflected a different reality.

Protesters once again filled the streets in downtown, defiantly moving fencing meant to keep the crowd away from the Multnomah County Justice Center. And once again, federal officers launched tear gas into the protest.

The state attorney general announced a federal lawsuit late Friday against the United States Department of Homeland Security, the United States Marshals Service, the United States Customs and Border Protection, the Federal Protection Service and their agents "alleging they have engaged in unlawful law enforcement in violation of the civil rights of Oregonians by seizing and detaining them without probable cause."

The attorney general added:

The lawsuit will be followed by a motion for a temporary restraining order (TRO) regarding the forcible detainment of an Oregon resident, Mark Pettibone. If granted, the TRO would immediately stop federal authorities from unlawfully detaining Oregonians. Rosenblum's actions come in response to two disturbing incidents that occurred this week. Both involved federal authorities overstepping their powers and injuring or threatening peaceful protesters on the streets of Downtown Portland. The lawsuit comes after two incidents this week, the attorney general's office said:

1. "The first of these took place on July 12, 2020, when a peaceful protester was standing near the Mark O. Hatfield United States Courthouse. The protester was hit in the head with an "impact weapon" and suffered severe injuries."

2. "The second occurred July 16, 2020, also in downtown Portland, when an unmarked minivan with undercover federal agents wearing generic green military fatigues forcibly detained Pettibone, who was walking on a sidewalk. Pettibone was later held at the Federal Courthouse, and eventually was let go."

"I share the concerns of our state and local leaders – and our Oregon U.S. Senators and certain Congressional representatives – that the current escalation of fear and violence in downtown Portland is being driven by federal law enforcement tactics that are entirely unnecessary and out of character with the Oregon way. These tactics must stop," Ellen Rosenblum, Oregon's attorney general, said in a statement.

She continued:

They not only make it impossible for people to assert their First Amendment rights to protest peacefully. They also create a more volatile situation on our streets. We are today asking the federal court to stop the federal police from secretly stopping and forcibly grabbing Oregonians off our streets, and we are announcing a state criminal investigation, with the Multnomah County District Attorney, into the incident resulting in serious injuries to a peaceful protester — apparently committed by a federal police officer in downtown Portland last week.

"The federal administration has chosen Portland to use their scare tactics to stop our residents from protesting police brutality and from supporting the Black Lives Matter movement. Every American should be repulsed when they see this happening. If this can happen here in Portland, it can happen anywhere."

As police, both local and federal, have responded to demonstrators with increasing force, the protests have grown more unwieldy and determined. Neither side appears ready to surrender.

"Once you're out on the street and you've been tear-gassed and you see that there's no reason — the police will claim that there's a riot just so they can use tear gas — it makes you want to go out there even more to see if there can be any kind of justice," Pettibone told The Post.