“We are asking the court to declare it unconstitutional to use police-state tactics,” Rosenblum said at the outset of the session.
Rosenblum and her deputies argued that the assertive federal response was discouraging protest activity and that the Trump administration was deliberately seeking such a “chilling effect.”
Mosman, however, suggested that the relief the state was seeking — chiefly an order that the federal officers briefly identify themselves and the grounds for their actions — might be too limited to give much solace to would-be protesters.
“I can’t do anything about how terrifying it is to be arrested by the police,” the judge said. “It is terrifying to be lawfully arrested. … If they say, ‘We’re with the Marshals Service. You’re being arrested for breaking windows,’ nobody is chilled anymore? How does that work?”
Mosman also quickly noted that the use of unmarked vehicles by police is commonplace, so that this alone could not be the basis for concluding that federal officials were out of line.
The judge, an appointee of President George W. Bush, observed that the state had evidence of only two examples of objectionable arrests or detentions: a video of one detention and a declaration from Mark Pettibone, a 29-year-old Portland resident, who says he was grabbed off the street by men in camouflage last week.
“I did not know whether the men were police or far-right extremists, who, in my experience, frequently don military-like outfits and harass left-leaning protesters in Portland,” Pettibone wrote. “My first thought was to run. I made it about a half-block before I realized there would be no escape from them.”
Pettibone said he was taken to be questioned at what he now believes is a federal courthouse in Portland. He said that he was read his Miranda rights and eventually released, but that he was never sure who had detained him and had no idea why he was being picked up.
The identity of the person in the video showing a streetside detention has not been confirmed. Oregon officials initially cited a second video, but later withdrew that example, saying it took place in another state.
While Mosman took issue with several aspects of Oregon’s case, he did say it appeared for the moment that the evidence suggested that Pettibone was illegally detained. The state met its burden to show that, the judge said, because the Justice Department produced no formal explanation of why Pettibone was picked up.
“I’m not in a position, based on the notice that we’ve had, to submit declarations from the arresting officers as to the basis for the arrests,”said a Justice Department attorney, David Morrell.
Morrell complained that subjecting the federal agents to a restraining order would put an unfair burden on law enforcement. “If we want to talk about a chilling effect, one can easily imagine this having a serious chilling effect on the way in which a law enforcement officer attempts to discharge his core duties,” the Justice Department lawyer said.
Echoing comments from President Donald Trump and others in the administration, Morrell said the federal law enforcement agents were needed only because of a “failure” by state and local law enforcement to address criminal activity amid the recent unrest in Portland.
Mosman also asked questions that seemed to express doubt about whether Oregon had the right to sue over the federal agents’ alleged impact on Oregon residents.
During the hearing, the judge issued no immediate ruling on the state’s request for a temporary restraining order.
The intense focus on the actions of federal agents in Portland comes as Trump announced plans on Wednesday to “surge“ federal law enforcement officers into other cities. During a White House event, the president said that the move was needed because local officials were undermining their police forces for political reasons.
“You have been seeing what is happening all around the country,“ Trump said. “Frankly, we have no choice but to get involved.“
However, other top officials at the event stressed that the expansion of a Justice Department-led effort targeting violent crime was separate from the Homeland Security-led drive to protect federal buildings.
“It‘s important to stress that the operations we‘re talking about are the standard anti-crime-fighting activities we‘ve been carrying out around the country for decades,“ Attorney General William Barr said. “This is a different kind of operation, obviously, than the tactical teams we use to defend against riots and mob violence.“
Chicago and Albuquerque are the newest cities receiving additional agents in the federal surge, Barr said.
In addition to the Oregon state case, at least three other lawsuits have been filed in federal court relating to the response to the Portland protests, which began almost two months ago, after the death of George Floyd in an encounter with Minneapolis Police.
A hearing is set for Thursday before another judge on a request for an order effectively exempting journalists and legal observers from being subject to police directives to disperse.
In a court filing in that case on Tuesday, a Homeland Security official said the mission to protect federal courthouses and other buildings in Portland had been officially dubbed “Operation Diligent Valor.” It involves 114 federal law enforcement officers from the Federal Protective Service, Customs and Border Patrol, Immigration and Customs Enforcement and the Marshals Service, the filing said.
The DHS official also described a “rapid deployment force” that is aimed at arresting violent protesters and uses at least some of the tactics employed in the detentions and arrests described in the lawsuits.