‘Rioters Have Been Grabbed Off the Street Without Probable Cause’ - Round One Goes to the Government

Congressman Ted Lieu of California and other Democrats have alleged that federal agents have seized protesters, placed them in unmarked vehicles, and detained them for several hours before releasing them.  Lieu called these ‘police state’ tactics. 

The Fourth Amendment to the U.S. Constitution protects people against unreasonable search and seizure.  The state of Oregon recently went to court to get a temporary restraining order to prevent the federal government from seizing protesters off the street without probable cause in the future.  Oregon lost.

The federal judge assigned to the case began his opinion by pointing out that protesters whose rights are violated can sue for money damages and injunctive relief themselves.  But this case was different because the plaintiff was the state of Oregon, not a protester.  Moreover, the state was suing to stop unlawful practices from happening in the future, not to redress harm done to protesters in the past.

Several pages later, the judge concluded that Oregon lacked standing to bring such a case, because it had no interest in the matter specific to the state itself.  The opinion referred to numerous reports cited by the state that federal agents were grabbing protesters and shoving them into unmarked vehicles.  The allegations, if true, amounted to ‘”seizures” under the Fourth Amendment, the judge acknowledged.  However, the Oregon Attorney General overstated the evidence.  The judge reviewed the evidence the state presented, and found there was only one instance of an arrest without probable cause and one case of an unreasonable seizure.  The judge found it notable that the state did not pursue the notion - or request any relief - regarding the supposed use of unmarked vehicles.  The state let that assertion go.  Overall, the judge said the state’s comparison of current events to the 30,000 people who were disappeared in Argentina 40 years ago was completely off base.  He ruled that Oregon did not have standing to seek a restraining order to prevent widespread 4th Amendment abuses in the future based on a record of just two incidents. 

He also found not credible the state’s claim that it was injured because reports of random seizures by the feds might encourage counter-protesters to dress up like police officers and kidnap protesters.  The state admitted it didn’t have a shred of evidence from anywhere, at any time, to support this theory, making it just wild speculation.  

The state could have, but did not, show that all of the government’s seizures lacked probable cause - there have been dozens.  Also, the state failed to produce any evidence that federal agencies had given their personnel standing orders to grab people at random off the street.  The state had no evidence of any of this, and thus failed to establish these are widespread practices.  Without widespread practices, the state had no standing to obtain the sweeping injunctive relief it sought for the future, the judge ruled.

So, Oregon gets an ‘A’ for creativity, but its wild legal theories didn’t pass the ‘laugh test’, as they say in the legal business.  This was not a close question.  Oregon had to know they didn’t have a legal leg to stand on.  So the question becomes, why did they pursue it?