What Really Happened In Portland Before Trump Deployed The National Guard

from the a-lot-less-than-he-claims dept

This story was originally published by ProPublica. Republished under a CC BY-NC-ND 3.0 license.

⚠️ This story contains videos showing violence.

President Donald Trump and officials in his administration say National Guard troops are needed in “War ravaged” Portland, Oregon, to protect a local Immigration and Customs Enforcement office that he described as being under siege.

But a ProPublica review found a wide gap between the reality on the ground and the characterizations by the president and the Department of Homeland Security, which said ICE facilities like Portland’s were under “coordinated assault by violent groups.”

We reviewed federal prosecutions and local arrests, internal protest summaries by the Portland Police Bureau, sworn testimony from local and federal officials as well as more than 700 video clips containing hours of footage posted to social media by protesters, counterprotesters and others. We focused on the three months before Sept. 5, when Trump made his first remarks about sending troops to Portland.

The evidence shows officers and protesters were indeed involved in incidents with varying levels of intensity on a little more than half the days. Protesters and counterprotesters exchanged blows at times. With some frequency, smoke and tear gas filled the air and shots from less-lethal police weapons could be heard.

There was no evidence of what could be termed a coordinated assault.

On most of the days or nights when officers and protesters clashed, local police and federal prosecutors ended up announcing no criminal arrests or charges — even though any number of crimes can be cited if someone commits violence against federal officers or property.

In addition, while protests continued across the summer, most of the alleged action by protesters that resulted in federal prosecution or local arrests ended two months before Trump said troops were needed in Portland.

_{While federal judges decide whether Portland protesters’ behavior constitutes a rebellion, ProPublica set out to examine the degree to which they were inciting unrest and the role that federal officers played. Video by Joanna Shan/ProPublica}

A federal judge has temporarily blocked Trump’s deployment of the National Guard to Portland, saying that his administration had not proven that the protests can be fairly characterized as a rebellion, a risk of rebellion or an ongoing lack of order that prevents government officials from carrying out their duties.

Last week, the Justice Department argued in federal court that the last of these three categories — a breakdown of public order so severe that ICE officials can’t do their jobs — is what unfolded in Portland, justifying the president’s decision to federalize Oregon’s National Guard.

The judge is expected to issue a final ruling this week, and the case is expected to continue before the 9th U.S. Circuit Court of Appeals.

If the courts go against Trump, he has another tool that could bring troops: the federal Insurrection Act, which experts say has a lower bar to being used and could involve active-duty military.

While the courts deliberate, ProPublica set out to examine the degree to which protesters were fomenting unrest and the role that federal officers themselves played.

Two policing experts who reviewed videos said federal officers at times used force inappropriately, echoing a Portland police official who testified in court that federal officers were instigating the chaos night after night.

Brian Higgins, former police chief in Bergen County, New Jersey, and a lecturer at John Jay College of Criminal Justice, said some of what federal officers did in the video clips was not typical.

“My question would be, ‘If you used force, why did you not follow through with an arrest?’” Higgins said.

For instance, on Sept. 1, masked officers in combat gear responded to protesters who placed a prop guillotine on the sidewalk in front of the ICE building. The officers chased away the protesters with tear gas, smoke and other less-lethal weapons, grabbed the guillotine and hauled it inside. No criminal charges were announced.

“If there was nothing else to justify the officers coming out and doing this, you’ve got to scratch your head,” Higgins said.

Justice Department attorneys said in a court filing that the presence of the mock guillotine required federal officers “to exert physical force to keep order.” Videos show a protester blowing bubbles in the moment before federal police advanced on the crowd.

The scene of protesters dispersing and officers giving chase became the centerpiece of a Fox News broadcast on Sept. 4, the night before Trump said Portland’s protests had drawn his attention.

Our review showed that the force used against demonstrators had clearer provocation in initial protests. From the start of June to July 4, Portland police arrested 28 people, while federal prosecutors said they charged 22 with criminal offenses including arson and assault.

Abigail Jackson, a White House spokesperson, told ProPublica in a statement that the arson and assault charges show “this isn’t a peaceful protest that’s under control, like many on the Left have claimed, it’s radical violence.”

“President Trump is taking lawful action to protect federal law enforcement officers and address the out-of-control violence that local residents have complained about and Democrat leaders have failed to stop,” Jackson said.

But from July 5 through Sept. 4, the violence appeared to slow significantly. Portland police announced no arrests of protesters during this time, and federal prosecutors announced criminal charges against just three. 

Only one was accused of a violent offense: felony assault for allegedly spitting in an officer’s face after an arrest for flying a drone around the building. The person pleaded guilty to a misdemeanor drone offense; the assault charge did not move forward. Another person’s misdemeanor charge, alleging failure to obey an officer, was also dropped. The case against the third person, another misdemeanor allegation of failing to obey, is proceeding.

In legal filings supporting the use of troops, federal officials described a handful of additional violent incidents from July 5 through Sept. 4. They said that protesters hit an officer with a stick on July 20, threw screws on the ICE facility’s driveway on July 24, pounded fists on vehicles on Aug. 9 and 11, threw rocks and a firework over the building’s fence on Aug. 16, injured two officers in an attack on Aug. 25 and provided directions online to an officer’s home on Aug. 28. No criminal charges were announced in these cases.

During the roughly two months leading up to Trump’s Sept. 5 remarks, videos from more than 20 days or nights show federal officers firing on, grabbing, shoving, pepper-spraying, tackling or using other munitions on protesters. They deployed hissing cans of tear gas, sometimes sending clouds of the chemical irritant floating toward a nearby low-income apartment building.

No local arrests or federal criminal charges were announced on these days or nights, and only a handful of the dates corresponded with incidents of protester aggression asserted by federal authorities in their legal case for sending troops.

In most cases, videos from these events show masked federal officers using aggressive tactics that lack a clear reason.

One federal officer runs and tackles an unsuspecting protester from behind on Aug. 13, causing what the man said in a legal filing was a head injury and concussion. The person was not charged with any crime.

In a clip from Sept. 6, the day after Trump’s remarks about Portland, a federal officer walking back into the ICE building turns, walks out of his way toward a protester and pushes the man so hard he falls to the ground and rolls over backward. The officer then continues inside the building.

Seth Stoughton, a law professor at the University of South Carolina who studies policing, reviewed videos from the protests at ProPublica’s request and said some of the federal officers’ uses of force looked “gratuitous.”

“Going out of your way to shove someone while you’re on the way back from arresting someone serves no purpose other than intimidation,” he said, “and intimidation is not a lawful government objective.”

A spokesperson for the Department of Homeland Security did not respond to emails requesting comment on its officers’ tactics.

Allegations of Protester Violence Subsided Over Time 

There’s no doubt that the summertime protests were often confrontational, emotional and loud. Protesters, some dressed in black, often wore gas masks and shouted profanities at federal personnel. In June, some were also violent.

Five people faced arson charges after separate events on June 11 and 12 in which prosecutors said fires were set. One was in a trash can against the ICE building, while in another instance prosecutors said a protester used a flare to set fire to wood stacked against the front gate.

Videos from June 14 show a protester striking an officer in the head with a wooden stake that holds a protest sign. Another clip shows protesters using a stop sign as a battering ram on the front door of the ICE building.

Portland police declared a riot and made two arrests that day; federal prosecutors also said they charged three people with assault.

On June 24, a video shows someone waving a large knife at officers, being tased while running away and falling face first onto the sidewalk. Federal prosecutors filed charges against three people from that night’s protest: the person accused of wielding the knife, another accused of shining a laser pointer in an officer’s eye and one accused of hurling a gas canister back at officers, hitting one.

In addition, a Homeland Security news release from July 11 shows photos — without providing dates — of what the agency said were flyers posted in federal officers’ neighborhoods showing their names, images and addresses. The release said such information was also posted online.

Federal authorities have said protests led them to close the ICE building and work out of temporary office space from June 13 until July 7, after which the facility reopened. An analysis by Oregon Public Broadcasting found that immigration bookings continued, albeit at a slightly slower pace than average for Trump’s second term.

But violence initiated by protesters mostly subsided after July 4, based on charges or arrests announced by authorities and video reviewed by ProPublica.

The summer’s last criminal allegation of protester-on-officer violence — at least for anything other than spitting — came from a large Independence Day protest that led to federal criminal charges being filed against four people. They were individually accused of kicking an officer, throwing an incendiary device at officers, graffitiing the building and destroying fiber optic cables at the facility.

Evidence of protester violence for the rest of the summer is limited beyond the two misdemeanors and one felony charge announced by prosecutors.

In addition to the instances asserted by the government in court filings but not charged criminally, the FBI recently issued statistics that suggest dozens of people may have received citations. In the federal system, these are similar to traffic tickets and are generally issued for minor offenses. But when asked for details by ProPublica, the agency would not specify how many were issued or during what time frame.

Meanwhile, the use of force by federal officers continued.

Violence Without Violent Provocation

In most of the cases where videos captured police using crowd control tactics or other elements of force on protesters, there were neither announcements of criminal charges that followed nor allegations of protester violence made in the administration’s case for sending troops.

An official with the Federal Protective Service, which polices federal buildings, testified in court last week that federal officers use a loudspeaker to warn large groups to move. If they don’t, he said, officers physically move them.

Stoughton, the University of South Carolina law professor, said officers should use tear gas and other heavy chemical munitions sparingly when dispersing a crowd.

He added that many city police departments would be very hesitant to use these munitions “if it’s going to have this completely predictable environmental contamination on people who are utterly uninvolved with the protest.” In Portland, there’s an apartment building across the street from the ICE facility.

In addition, Stoughton said, police managing crowds ordinarily would first take time to engage people verbally, face to face, to try to get them to step aside.

“You typically don’t just want to jump right to higher levels of force,” Stoughton said, “because the point is to limit the potential for escalation.”

On two occasions shown on video, aggressive moves by officers appeared to be intended at least in part to allow them to seize protest symbols: a burned American flag that officers bagged and took indoors and the Sept. 1 display of a mock guillotine, an implement that 18th-century French revolutionaries used to decapitate royalty.

Video from the event captures someone playing a song by the Oakland hip-hop group The Coup with the chorus, “We got the guillotine, you better run.” An American flag can be seen burning at the guillotine’s base.

Stoughton said municipal police departments like those in Portland know they have to balance protesters’ First Amendment rights with public safety. “There is no more protected First Amendment interest than the ability to protest government action, to criticize the government,” he said.

A guillotine “can be purely symbolic,” he said. “That can be purely expressive.”

The Federal Protective Service incident commander that night, Will Turner, said in court that agents did not know the guillotine was a prop and thought it was real at the time. “We took it as an actual threat,” he said.

Objects like the guillotine or statements from protesters telling ICE agents to kill themselves appear to be protected speech, said Timothy Zick, a law professor at William & Mary Law School who studies public protest and the First Amendment, because they do not pose a true threat to officers.

It is “likely the sort of political hyperbole and heated rhetoric the Supreme Court has treated as protected speech,” Zick said. “The statements are likely to be considered part of a political protest.”

Notably, officers were sometimes able to clear crowds without aggressive tactics.

Footage on those occasions shows vehicles leaving the ICE compound without incident. Officers move out and onto the sidewalk, and protesters stay out of the way of the vehicles.

In one of those nonevents, as officers return to the ICE compound and the gates start to close, the thin crowd chants: “DHS — doesn’t have sex.”

A federal officer brings his hand to his mouth on the video.

He appears to blow a kiss.

What Happens Next

Trump’s order remains tied up in the courts.

Federal District Judge Karin Immergut blocked the deployment once, then again on Sunday, saying the Trump administration had “commandeered” the National Guard to quell protests that do not constitute a rebellion and had eased after a “high watermark of violence and unlawful activity” in June.

“The trial testimony produced no credible evidence of any significant damage to the ICE facility in the months before the President’s callout and no credible evidence that ICE was unable to execute immigration laws,” the judge wrote. “Protesters frequently blocked the driveway of the ICE building, but the evidence also showed that federal law enforcement officers were able to clear the driveway.”

Immergut said the deployment violated the 10th Amendment, which says that powers not given to the federal government by the Constitution are reserved to states. The judge said Trump “had no lawful basis to federalize these Oregon National Guardsmen.”

Earlier in the appeals process, two appellate judges who upheld Trump’s decision said protester violence from earlier in June was a relevant concern that must be considered in the case.

A panel of judges from the 9th Circuit is expected to hear arguments from both sides next.

Filed Under: donald trump, ice, immigration, national guard, oregon, portland, protests