A BORTAC unit from the Department of Homeland Security deploys tear gas in front of a Portland federal courthouse, July 22, 2020. (Wikimedia/Tedder)

Over the past few days, millions of people have seen a now-viral video in which two federal agents dressed in full combat gear removed an apparently peaceful protester from the streets of Portland, Ore., and carried him away in an unmarked van. Stories have emerged of other people being taken or pursued by federal agents in a similar fashion. Meanwhile, troubling videos show federal agents in Portland beating a peacefully resolute U.S. Navy veteran and, on a separate occasion, shooting a man in the face with a nonlethal munition, which broke his skull.

By Andrew Crespo

Published on LawFare, July 25, 2020

Over the past few days, millions of people have seen a now-viral video in which two federal agents dressed in full combat gear removed an apparently peaceful protester from the streets of Portland, Ore., and carried him away in an unmarked van. Stories have emerged of other people being taken or pursued by federal agents in a similar fashion. Meanwhile, troubling videos show federal agents in Portland beating a peacefully resolute U.S. Navy veteran and, on a separate occasion, shooting a man in the face with a nonlethal munition, which broke his skull.

As criticism of these events rolled in—including from virtually every relevant state and local official in Oregon—the Department of Homeland Security scheduled a press conference earlier this week to try to reclaim the narrative. If the point of that press conference was to reassure an anxious nation that this unfamiliar and recently constituted federal police force is following the law, it likely achieved the opposite effect.

In particular, there is a two-minute segment of the press conference that is both revealing and highly disturbing. It shows that one of the top commanders of this new paramilitary federal police force—Kris Cline, Deputy Director of the Federal Protective Service—apparently does not know what the word “arrest” means. To say as much might seem like harping on semantics or, worse, like picking on Cline for speaking inartfully. But it is absolutely critical to unpack and examine Cline’s words—because the word arrest is one of the most important words in the constitutional law of policing.

Simply put, for an arrest to be constitutional it must be supported by probable cause. This means that the arresting officer must be able to point to specific facts that would cause a reasonable officer to believe that the person being arrested has committed a specific crime. If, on the other hand, the police have not arrested someone but have instead conducted only a brief investigatory stop, they need substantially less proof that the target of their attention is engaged in criminal activity. And if the police initiate instead what is often termed a consensual contact—as would occur if, say, a uniformed officer walked up to you and said, “hey, I want to ask you some questions”—well, in that case the Fourth Amendment simply does not apply, which means the officer does not need to have any reason to approach you.

Arrests, stops and contacts carve up the universe of police-civilian interactions in the United States. So, when I say that Deputy Director Cline does not appear to know what the word “arrest” means, what I am really saying is that he does not know where the basic and essential legal lines are that mark the bounds of his agency’s lawful authority. That is a problem.

This post expands on a Twitter thread I wrote earlier this week. It is a deep dive into the critical two-minutes of the DHS press conference, during which Cline made a series of comments that lead to only one of two possible conclusions: Cline does not know what the word “arrest” means. Or, if he does, he thinks no one will call him out for saying something that is patently untrue. Either way, he is wrong.

“What Exactly is the Standard of Probable Cause That You Are Getting?”

Let’s start at the beginning, when a reporter asked Acting Secretary of Homeland Security, Chad Wolf, what is arguably the most critical question concerning the federal police presence in Portland: “What exactly is the standard of probable cause that you are getting” when your officers seize civilians?

For an answer, Wolf turned things over to Richard “Kris” Cline, the Deputy Director of the Federal Protective Service (FPS). Until recently, FPS was a relatively small and unknown federal law enforcement agency tasked with protecting federal buildings, like the federal courthouse in downtown Portland. That courthouse is adjacent to the Multnomah County Justice Center, a building that has been the focal point of racial- and criminal-justice related protests in Portland stretching back nearly two months. In the course of those protests, both the Justice Center and the adjacent federal courthouse have been vandalized.

FPS is in charge of ensuring the security of that federal courthouse. And over the past few weeks, it has become a less obscure and considerably less small agency as Acting Secretary Wolf has supplemented its ranks with special-operation tactical units from Customs and Border Patrol, ICE and other federal law enforcement entities. These federal tactical units typically conduct immigration raids or patrol the border. But in their new mission in Portland, they are deputized FPS agents. And as a result, they report to Cline.

“You’re Probably Talking About the Van”

When Cline stepped up to the microphone, he started to address the reporter’s question about probable cause by saying, “you’re probably talking about the van.” This is a reference to the now-viral video, viewed nearly 13 million times, in which two camo-clad federal agents remove a peaceful protester from the street by placing him in an unmarked van. If you have not seen the video, it is worth watching now. (It’s 39 seconds long.)

Cline proceeded to offer the government’s account of the facts leading up to and following this encounter. With respect to what happened before the video begins, Cline explains that earlier in the night the agents in the video had seen the man in the video “in a crowd and in an area” from which someone was aiming a laser at the eyes of officers. The agents, Cline said, followed the man because they wanted to ask him some questions.

Crucially, it is clear from Cline’s statements that the agents never had any reason to believe that the man was the person pointing the laser. Cline says “the individual that they were questioning was in a crowd and in an area where an individual was aiming a laser at the eyes of officers” (emphasis added). Cline later adds that the agents wanted “to question this individual to find out what their [sic] role was in this laser pointing.”

The video speaks for itself regarding the manner in which the agents grabbed the man and put him in the van. Cline, however, gave important additional context for why the officers behaved the way that they did. “As they approached” the man, Cline explained, “they noticed that coming in their direction were violent demonstrators.” Fearing for their own safety, the agents decided to leave the scene—and to take the man with them.

Note again that Cline did not suggest the man in the video ever did anything himself to alarm the agents or to give them grounds to believe he was engaged in criminal activity. The agents wanted to get off the street to get away from the crowd—and they wanted the man to come with them. So, they grabbed him; put him in a van; and took him, in Cline’s words, “to an area that was safe for both the officers and the individual to do the questioning.”

Cline never explicitly says where the agents took the man. But we know that in a separate incident federal agents who wanted to question a man named Mark Pettibone similarly grabbed him off the street, put him in an unmarked van, and took him into the nearby federal courthouse itself for interrogation. It seems safe to conclude that when the agents in the video relocated the man they grabbed to “an area that was safe” for them “to do the questioning,” they took him into the courthouse as well. That conclusion is bolstered by Cline’s statement that the amount of time that transpired “while [the agents] did the questioning” was roughly twenty minutes, as the agents surely would not have questioned the man for that long out on the street, given their apparent fear of the surrounding crowds.

“They Didn’t Have What They Need”

Those are the basic facts of the incident, according to Cline, speaking on behalf of DHS. They raise a number of questions. Perhaps most notably: Was this constitutional?

The basic legal framework here is not particularly complex. As noted at the outset, arresting someone without probable cause is unconstitutional. One important question to consider when assessing the legality of the viral van encounter is thus whether the agents had probable cause.

As I’ve described at length in an article recently published in the Yale Law Journal, probable cause can sometimes be an elusive concept. But in some cases, like this one, its application is straightforward: The police do not have probable cause to arrest you just because you are standing in the vicinity of someone who may have committed a crime. As the Supreme Court explained in Ybarra v. Illinois, “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause.” Rather, a “seizure of a person must be supported by probable cause particularized with respect to that person.” There is no such thing as probable cause by mere association.

Cline seems to understand this. He acknowledges that the agents did not have probable cause for an arrest. As he explains, when the officers ultimately “released” the man from custody they did so—after consulting with government lawyers—because they concluded “they did not have what they needed” to detain him. In other words, they did not have probable cause. Not when they spoke to the lawyers. Not when they put the man in the van. Not ever.

“It Was Not a Custodial Arrest”

And yet, Cline insists that the agents’ conduct was lawful. His explanation for why he thinks that to be true is the crux of the matter—and the most disturbing part of his statement.

According to Cline, the agents’ conduct was lawful because what they did was a “simple engagement.” “It was not,” Cline says, “a custodial arrest.” The argument, in other words, is that these agents complied with the Fourth Amendment because they did not need probable cause to put the man in the van in the first place.

This assertion is glaringly wrong. It has been glaringly wrong for at least forty years, ever since the Supreme Court’s opinion in Dunaway v. New York. The question there was “whether the . . . police violated the Fourth and Fourteenth Amendments when, without probable cause to arrest, they took petitioner into custody, transported him to the police station, and detained him there for questioning.” The answer, the Court said, was unequivocally yes: such a detention is “indistinguishable from a traditional arrest.”

As the Court went on to explain, “The mere facts that petitioner was not told he was under arrest, was not ‘booked,’ and would not have had an arrest record if the interrogation had proved fruitless, while not insignificant for all purposes, obviously do not make [the] seizure even roughly analogous” to a mere investigatory stop, let alone a consensual contact. Rather, Dunaway holds that, at a minimum, a person who is “taken” from “where he was found,” placed in “a police car, transported to a police station and placed in an interrogation room” has been arrested.

It is worth noting that Dunaway does not stand alone in the Court’s Fourth Amendment canon. On the contrary, it builds on an earlier case, Davis v. Mississippi, and has been reaffirmed in later ones, including Hayes v. Florida. In the former case, the “police, without warrants, took at least 24 Negro youths to police headquarters where they were questioned briefly, fingerprinted, and then released without charge.” The government conceded this was done without probable cause. And while the detentions were all “brief,” the Court nonetheless concluded that they were unconstitutional arrests.

As for Hayes, the Court in that opinion reaffirmed Davis and Dunaway, describing the core holdings of those cases as follows:

None of our later cases have undercut the holding in Davis that transportation to and investigative detention at the station house without probable cause or judicial authorization together violate the Fourth Amendment. Indeed, some 10 years later, in Dunaway v. New York, we refused to extend Terry v. Ohio, to authorize investigative interrogations at police stations on less than probable cause.

Any one of these cases, standing alone, resolves the question at hand. Taken together, the conclusion is inescapable: When the agents put the man in the van, took him off the street and brought him inside for questioning, they arrested him. Cline says they did so without probable cause. That means they violated the constitution.

“Unfortunately It Got Kinda Spun Out of Control With the Rhetoric About What Happened”

There is an odd, disorienting quality to Cline’s two-minute statement. I have no reason to question Cline’s integrity or motives. But on its face, his statement feels like a kind of criminal procedure version of gaslighting. With an earnest, “just the facts” style, Cline is clearly trying to convince the public that what happened in Portland is not a big deal.

The agents were “peaceful,” he said. “There was no tackle to the ground.” This was just “a simple engagement.” It is unfortunate, Cline tells us, that this all “got kinda spun out of control with the rhetoric about what happened,” as if the people questioning the legality of the arrest are the ones blowing this all out of proportion. After all, Cline reminds us, “it was not a custodial arrest.”

Except it was.

“And So That’s How That Came About”

Shortly after I wrote my Twitter thread, a producer at NPR asked me to read it aloud for a “radio diary.” Professor Timothy Snyder of Yale University was interviewed in the same segment. After listening to my reading of the thread, he offered a striking diagnosis of Cline’s statement:

It’s very troubling. To say that the man was not arrested is simply lying. This is what authoritarian propaganda sounds like. A man has been arrested and you find some other way to describe it, for example, as a ‘simple engagement,’ which is false but it sounds like a technical term. So you stop and think about it. That’s how authoritarian propaganda works.

I do not know if Cline is trying to gaslight America. But I do know that, if he is not, there is only one other possible conclusion: He does not know what an arrest is. And that, too, is extremely problematic. If the person in command of a newly beefed up federal paramilitary police force does not know whether his agents are arresting people, he cannot possibly know whether they are doing so constitutionally—on the streets of Portland, or wherever President Trump deploys these federal agents next.


Andrew Manuel Crespo is a Professor of Law at Harvard Law School, where he teaches and writes about criminal law and procedure. Prior to becoming a professor, Crespo served as a Staff Attorney at the Public Defender Service for the District of Columbia. Before that, he served for three years as a law clerk, to Judge Stephen Reinhardt, Justice Stephen Breyer, and Justice Elena Kagan.


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