OA406: Fascism in Portland

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 406. I'm Thomas Smith. That's Andrew Torrez. Andrew, how are you doing today?

0:01:24 Andrew: I am doing fantastic, Thomas. How are you?

0:01:27 Thomas: Doing great. I hear you picked up another specialization in fascism law over the weekend.

0:01:35 Andrew: Yeah, yeah, we were talking about the main segment for this show, which is explaining to everyone comprehensively what's going on in Portland, what are the legal bases and why. And I told you, like, I'm a little bit, you know, I am treading cautiously here, right, because this isn't my area. And you replied, whose area is like a secret police law?

0:01:55 Thomas: Exactly. Yeah.

0:01:59 Andrew: And and that's a good point.

0:01:59 Thomas: What was the course kind of outline at old Harvard Law? Do you want to study stormtroopers in America? Yeah, I don't know what that would be. I guess constitutional law.

0:02:09 Andrew: Yeah, not a. Yeah. I, you know, maybe I was out on the day in which we discussed, you

0:02:27 Thomas: I'm so blown away by this. It's truly scary stuff. And I'm really glad that you've done the research because a lot of people, especially, you know, in the Facebook group, by the way, go join that Facebook group because you can post and make your voice heard. And then maybe Andrew will do a segment on things you say, you know, probably not a lot of people wanted to know about this myself included because it's so hard as always to know what's real, what's fake, what's is something being exaggerated, but this just downright seems terrible. Like, I don't, I'm not, I don't know if there's going to be a good version of this and also if this is really what's going on. There are so many questions I have in terms of what we can do, like, how are they even doing this. So that's going to be the main segment. We're going to be talking all about what's going on in Portland. Um, the the federal officers that are unmarked and dragging people away and just all this crazy stuff. So, that's the world we're living in. This, this, you know what? This episode feels like

0:02:30 Andrew: Yeah, that's true.

0:03:21 Andrew: Yeah,

0:03:21 Thomas: A parody that Eli Bosnick would have done of our show back in 2016, like thinking what it would be in 2020. Well, we got the virus killing the entire planet. Uh, Trump's sending federal troops to drag people away in Portland. This is this is a joke. We're in a joke right now, Andrew. I'm just, sorry, I'm having a bit of a a crisis right now. Like, we are in a joke from like 2015, all

0:03:28 Andrew: Yeah, So That's kind of what this show feels like, right, it feels like no, like Donald Trump Trump didn't really send federal agents dressed in camo to go shoot at people, haul them off the street and throw them into unmarked vans in American cities, did he? And the answer is yes. Yes, he did do that. And so that's terrifying. There are a lot there are a lots of silver linings here. So when we get to that story that there are there are lot of good potential long range outcomes. And I want to talk about those. But but, yeah, we're going to walk you through everything that's going on in Portland.

0:03:48 Thomas: Right.

0:04:21 Thomas: Well, this show is so action-packed, we definitely don't have time for the four minutes we just been talking about that, but that's OK. We also don't have time to talk about some very important stuff like the executive order on the census. Why don't you tease that for us?

0:04:36 Andrew: Yeah, we're to break down the latest EO that was promulgated yesterday that instructs that aliens not be counted during the census. Us. It is blatantly unconstitutional. And if you want to know why, and if you want to see us predicting this strategy in the wake of the Department of Commerce decision back in 2019, go listen to episode 307, which we will link in the show notes. But that explains how this is a part of Trump's abuse of his powers of apportionment. It's something we predicted, and it is something that that the incoming president will likely have to deal with. So, so put a pin in that, go back and listen. We did about an hour on this a year ago.

0:05:18 Thomas: Yep. Go there to learn how he definitely shouldn't be getting away with this a year ago. That's that's where he should episode 307. Check it out. Okay. Uh, let's get to our first segment. How do we even introduce these things? Remember those lunatics who waved their guns at peaceful Black Lives matter protesters in St. Louis.

0:05:31 Clip: The law breaking down

0:05:46 Andrew: Yeah. I do.

0:05:49 Thomas: There's a news update on them? Question mark?

0:05:51 Andrew: Yeah, yeah. I have this as your moment in white privilege. And, and, and I mean that seriously, right? Like we have, we have a liberal audience, but you know, we get pushback from our audience on things like white privilege and various social justice issues. And I can't think of a more clear application of that than in the case of Mark and Patricia McCloskey, who were the, um, see you say the term I have listed on on the whiteboard, which we can't say on the show. These are the folks who, if you've been living under a rock, watched as unarmed, peaceful Black Lives Matter protesters marched through an open gate into their little gated community, which is called Portland Place, which has kind of an eerie resonance with the main segment, in a suburb of St.

0:06:43 Andrew: Louis. And then these idiots went out on their porch, brandished firearms. Right, Mark grabbed a rifle, what appears to me, I'm not a gun guy, but appears to be a semi-automatic assault rifle, and Patricia has a comically large handgun. Um, they are in violation of every, uh, National Rifle Association approved safety protocol for how you handle firearms. Right, I mean, she's, she's got her finger on the trigger

0:07:11 Thomas: Yeah. Yeah. Side note, as much as we're not fans of the NRA, at least they actually have some safety protocols that these nuts never follow. It's like the Simpsons episode where Homer's turning the light on and off by shooting it. It'S like that kind of stuff.

0:07:19 Andrew: Correct. Right. Yeah, and if you're asking yourself, boy, isn't it illegal to stand on your porch and wave guns at people on the street? The answer to that is you bet your ass that's illegal. Right? Like it violates.

0:07:38 Thomas: Well, As long as we're not in Florida, maybe even

0:07:40 Andrew: Yeah. No, no, no. No. Even in Florida. And again, I want to I wantto talk about that because Missouri, like Florida, has a stand your ground doctrine, right? And I'm going to explain how that's not a get out of jail free card here. I mean that literally. So section 571.030 of the Missouri revised statutes defines the felony unlawful use of a weapon as when a person, quote, exhibits in the presence of one one or more persons, any weapon capable, readily capable of lethal use in an angry or threatening manner. That's what they did, right? You can't walk around and point a gun at somebody. And the punishment there is up to seven years in prison,

0:07:42 Thomas: In Florida. I your honor, I submit to the court every single page of the internet that has pictures and full video

0:08:33 Andrew: Yeah, yeah.

0:08:33 Thomas: Of these assholes doing that, like, not a lot of like difficulty in proving what happened here, should we go to, uh, let's go to item 29999753587753 and the evidence, another picture of these people doing this that went around the internet

0:08:38 Andrew: No. No. Yeah. Also, in addition to that felony unlawful use of a firearm, right, like, that's not a way you can use your gun, even in Missouri. That's the way to summarize that law, right? Right.

0:08:56 Thomas: That's a good quote for this episode

0:08:58 Andrew: It could.

0:08:58 Thomas: That's not a way you can use your gun even in Missouri. Yeah, I mean it makes sense, like this, you know, as much as these stand your ground laws are awful, often like the the idea that that means like you're playing freeze tag and as long as you have your hand on base, then you can threaten someone with a gun as much as you want. I did make sense that that's not how that works.

0:09:04 Andrew: Yeah. Yeah, right. Nor is it right. People have been tossing. I mean, not any of our listeners, but idiots have been tossed around like, oh, well, it's the Second Amendment. And again, the Second Amendment preserves your right to own a gun. Sometimes it preserves you a right to carry that firearm. It does not preserve your right right, to point it at people, right? That's not a right that you have in the Constitution. So felony unlawful use of a weapon, also misdemeanor assault, right, that is when a person purposefully places another person in apprehension of immediate physical injury, right. And as you might imagine, if you're a peaceful protester walking down the street and a lunatic is aiming a rifle at you, that reasonably places you in apprehension of immediate physical injury.

0:09:19 Thomas: Hmm. Yeah. Yeah.

0:10:03 Thomas: Not

0:10:04 Andrew: Possible sentence there, 15 days in jail. Okay, The defense that these people have offered is the, as you alluded to, the stand your ground or the castle doctrine, right? Let me explain what that doctrine, which again, it amends common law, right, it changes the common law doctrine left over from 13th century Saxony. And it has to deal with self-defense as an affirmative defense, right? So here's how that plays out. You shoot somebody, or you assault somebody, right? Or you batter somebody. You're definitely, like when you shoot somebody you're definitely guilty of the crime, you know, that applies of having shot somebody, whether it is murder or manslaughter depending on the circumstances, right?

0:10:52 Andrew: But you can offer, as an affirmative defense, that means that you as the defendant bear the burden of proving this by a preponderance of the evidence, right, 51-49, not beyond a reasonable doubt the other way, that you were offending yourself against imminent physical harm. And that, if accepted by the jury, is a defense to the crime of hurting or killing somebody. At common law, in 13th century Saxony, when these were, you know, like peasants dueling with knives and sticks and stuff, right, there There was an aspect of this kind of burden shifting going back and forth in self-defense that had to deal with what is called the duty to retreat.

0:11:41 Andrew: And it is exactly what it sounds like, right? So basically what it says is you are allowed to use deadly force to defend yourself, and then that was expanded to defend others, right, to defend your family, and then to defend others. But the retreat doctrine was, at the moment at which you are no longer in reasonable fear for your life or bodily injury to you or others around you, then you, as the person, had an affirmative duty to to retreat, to leave the situation. Right, so think about, like, that in the classic kind of, like, uh, gritty drama bar fight example, right, like guy in the bar comes after you with a knife, you can pull out your gun and shoot him, but

0:12:30 Thomas: I thought it was gonna be, it's always a pool cue. I thought that was the first weapon of choice.

0:12:31 Andrew: Yeah, Or pool cue Pool cue would work. Right, guy comes, guy picks up a pool cue, uh, and comes, comes after you Menacingly.

0:12:36 Thomas: Yeah. Oh, no, I was going to pool cue, he's got a knife. I'm going to, it's just satisfying. The good guy usually pool cues over the head. It snaps very satisfyingly.

0:12:40 Andrew: Yeah. Yeah. Yeah. In which self-defense works, there is the assailant comes after you with a weapon. You can use deadly force in self-defense. But now let's alter the circumstances a little bit. Suppose the assailant comes after you with a knife. You pull your gun and go, "Get out of here with that stupid knife of yours, uh, I've got a gun, I will shoot you dead," and then the guy in the bar is like, "All right, man, that we're cool, right?" And then puts his knife away, right, puts it back in his sheath or what, you know, wherever they are keeping their knives, you can't shoot him at that point, right? That, that the self-defense period has ended, right? And you now have, at common law, what is called a duty to retreat, right?

0:13:34 Andrew: You've diffused the situation. You're not in danger of your life. Now, what the law says, I think quite sensibly, is why don't you get the hell out of the bar, right? And the reason for that is because something we understood 700 years ago that maybe we've forgotten today is that maybe the law should encourage a resolution of situations that is designed to minimize the potential that someone will wind up dead. Stand your ground laws eliminate that duty to retreat when you are, and particularly when you are on your own property and someone has transgressed into your home. That's why they're sometimes called the castle doctrine, right? The idea a man's home is his castle, right. And so the idea is, okay, it's reasonable to say you should retreat from the bar, but like when you're in your house, your home is your castle.

0:14:27 Andrew: You don't have to retreat from your home, right, and so what that means is it is no longer, it does not defeat the affirmative defense of self-defense for the government to prove that the assailant was de-escalating at that point. So put all of that together. That means if I show up at your house, I break in, I'm brandishing a weapon, a knife, you pull out a gun. I say, all right, yeah, I am done. And then I put the knife away. Way.

0:14:56 Thomas: Uh, home inspector. Oh yeah. I'll just be on my way. Sorry.

0:14:59 Andrew: Yeah. Checking the pipes, land shark.

0:15:01 Thomas: Yeah, sorry.

0:15:03 Andrew: And this is where you get those cases of injustice that that would support an argument for you still shooting me. Right. For you saying that the original fear of my having broken into your home didn't wear off. You had no duty to retreat. And that's where the doctrine comes into play and creates these kinds of, you know, sort of of arguably bad results. Because look, yeah, this

0:15:28 Thomas: Are you saying this is, this is no longer a common law, right? You're just saying that some States.

0:15:32 Andrew: Is in stand your ground jurisdictions,

0:15:34 Thomas: Okay. So some States have stretched, Stretched the principles of common law to kind of get to that result, kind of, oh, okay, yeah.

0:15:34 Andrew: Right? This is how that applies. Right. Right, right. To say, yeah. They've explicitly amended it, right, so they've said, look, this the rule that would apply, right if we had no law, you would have a duty to retreat. But in your home, we've now passed a law that says in your home, you don't have a duty to retreat. And that's how it comes into play. And And that's how stand your ground laws can be used offensively. Right. But but but again, they they still begin with the initial act of the person whom you're now shooting in extended self-defense.

0:15:49 Thomas: Right.

0:16:08 Thomas: Seems hard to believe that that would also apply to standing outside your house, pointing guns at a peaceful protest. Those

0:16:14 Andrew: It it it doesn't. Right. So so you've identified the stand your groundbreaking here does not apply for two reasons. Number one, because while the protesters were on a private street. Right. That is, they were in a gated community. And so the streets were not owned by the federal government. They're not public property. They were not the McCloskey's property. Right. They were not on, you know, in the McCluskey's castle, so to speak. They made no effort to transgress onto the. Yeah, right.

0:16:45 Thomas: People would own a castle, by the way. Yep.

0:16:48 Andrew: So that's the first thing. But even if they had. Right. Let's say, know, McCloskey went on, went on Fox News to say, well, I thought if I didn't point my guns, they were going to come storming onto my lawn. On. That's a stupid argument. But in addition to being factually false, it's also legally irrelevant because even stand your ground requires, because all it does is amend the common law with respect to self-defense, it requires you to prove as the defendant that you, quote, reasonably were were in imminent danger to life or limb, right?

So in other words, you can't have an unreasonable fear, right, you have to say in order to claim self-defense, I thought that these people were about to attack me, never minding the fact that they were unarmed, peaceful protesters walking down the street, and the court and And the jury gets to determine whether that's reasonable or not. And no jury in America would determine that it is reasonable in this circumstance. So claims are laughable. They are guilty of crimes. And on Monday afternoon, St. Louis Circuit Attorney, that's the district attorney for the city of St. Louis, the top prosecutor, Kim Murphy, African-American woman, charged the McCloskeys with that felony unlawful use of a weapon and with misdemeanor assault. So there you go.

0:18:24 Andrew: Case closed. Justice is served, right? A couple of things. First, even the circuit attorney was not recommending that the McCloskeys serve any jail time. She was recommending that they be sent into a diversion program, right? That is a non-custodial program administered by the court instead of jail time to sort of teach you responsible use of a firearm. And you might ask yourself, like, hmm, I wonder how many African-Americans guilty of of uh, illegal use

0:18:56 Thomas: Say, talking about white privilege already, I mean, usually it's throw the book at them, but this, it's like, oh, you know, surely these, these kind people can be taught how to use their firearms in a less terrorist-y way. Wait,

0:18:57 Andrew: Yeah. Yeah, uh, Right, Yeah, Yeah, Yeah, Exactly. And keep in mind, right, the the excuses that are offered when uh, African-American kids armed with a sandwich, right, get shot by cops, for, oh, well, it had a, tinfoil you on it, and I thought it was a gun, and I had to shoot to protect myself. Any event, the recommendation was that they go through this diversion program. But that was not good enough for Missouri Governor and Republican, of course, Mike Parson, who, two hours after the indictments were handed down, went on the Hannity program and promised a full and complete pardon for the McCloskeys. When asked about a pardon, he said, quote, "Without a doubt, Sean, I'll do everything within the Constitution of the state of Missouri to protect law abiding citizens. And these people are exactly that."

0:19:55 Andrew: They're law abiding citizens and they're being attacked, frankly, by a political process that's really unfortunate. It's a sad day for us here in Missouri. So they will not so much as have to participate in a diversionary program or spend 15 days in jail. They're going to get away with this. They'll get away with breaking the law in a way that you would not if you were not rich, white, personal injury injury lawyers standing up for a racist cause in a racist state with a racist governor. One side note, because when I was talking to some folks about this, I was asked, well, hey, like they'll at least be disbarred, right? And the answer to that is probably more white privilege. Missouri Supreme Court Rule 5 does indeed require disciplinary measures against anyone who pleads guilty or no lo contendere, that is, I do not contest to a felony.

0:20:51 Andrew: Accepting a pardon, as we know, is the equivalent of acceptance of guilt. But I have to tell you the way in which, and I'll include the rule in the show notes. We can follow up if anybody has any questions. The way in which this plays out is Rule 5.21 regarding interim suspension and final discipline. And there's discretion in the process. So it will be up to the Office of Chief Disciplinary Counsel to make recommendations. And then the McCloskeys get to show cause as to why they should not be disbarred. And, uh, if you're a gambling person, uh, I would put my chips on will not be dispared, even though they will have accepted the guilt for having broken the law and been pardoned in the state of Missouri.

0:21:39 Andrew: Um, that doesn't convince, convince you, uh, that white privilege exists and is real? Um, I, I don't know what to say.

0:21:47 Thomas: Just imagine if the racial makeup were reversed. I'm sure Fox News would be reacting the same way. Ah, this is awful. I hate these people. I can't believe they're getting a pardon for just learning how to not use their guns dangerously, too. Too, like, well, that's incredibly frustrating, there's not really much to be done, I take it, I mean, the governor pardoning is kind of the final, buck stops there, really,

0:21:57 Andrew: Yeah. Yeah. Unfortunately, um, there's the, the, the governor's power to pardon is plenary. He is subject to, uh, political consequences. I suspect that this is, is probably among his constituency in Missouri. And so he is unlikely to pay a price for it. But, you know, this is, this is part of, it's a nice transition to the next segment, because, you know, how we change the dialogue here is, is, I think, the way that we move forward in the long run.

0:22:38 Clip: Thank you, Dr. Hibbert. I rest my case. You rest your case? What? Oh, no. I thought that was just a figure of speech. Case closed.

0:22:47 Thomas: Okay, today's main story, Andrew, as a lawyer, what the hell is happening in Portland, just what, what's happening,

0:22:55 Andrew: Yeah. I did a lot of research on this. I got a lot lot help, um, from my usual sources, uh, but especially from, from Emily Waters and Ashley Smith. So I want to call that out because, um uh, you know, secret psycho, uh plainclothes Gestapo tactics, uh is, is not my legal area. Um, let me, let cut to the chase. Okay. And then we're going to unpack everything. Um what is going on in Portland is completely illegal. There are multiple paths to relief, but that does not diminish the very real risks that protesters in Portland, some of whom are our listeners, right, who have talked about that behavior the OA Facebook community and elsewhere.

0:23:44 Andrew: And so I want to say this, right? Getting monetary relief in 2024 or having the officer who threw you in a van get having that officer themselves get arrested in, you know, a year from now is.

0:24:03 Thomas: Arrested, yeah, They'll get like disciplined for a week with without pay or something. Like, that's cold comfort you're saying.

0:24:04 Andrew: Yeah. Yep, yep. It is it is very, very cold comfort. So the protesters in Portland are heroes in the classic definition of the word. Right. That is, they are making a real difference and they are putting themselves at risk while the rest of us are safe. Safe. And so I want to say that. I want to acknowledge if you are participating in the protest, please don't take legal advice from this podcast, but do take our heartfelt and sincere appreciation for the long-term good you are doing in society. You are making a difference. And in particular, I think you were doing so in a couple of ways that maybe Maybe are not immediately apparent.

0:24:10 Thomas: Yeah.

0:24:58 Andrew: Right. And the first is really highlighting the the the two Americas, right, that we have a a second class legal system when it comes to immigrants and suspected aliens. And even lefties have kind of papered over those differences for a very, very, very long time. And now they are coming to the fore because as the government is concocting justifications for this, there are some legal bases for what the government istrying to do. And those legal bases come from entrenched, longstanding discrimination against aliens and suspected aliens in our law. And I'm going to break that down. And second, this is a strategy that Trump, that acting Secretary of Homeland Security Chad Wolf, his deputy Ken Cuccinelli, these people are monsters and they have said explicitly that they intend to replicate this strategy in other cities. So exposing it now is key to stopping the infrastructure that this strategy requires from going national. You ready for me to kind of walk through what's going on?

0:26:12 Thomas: I've been ready, man, what's happening? Well,

0:26:14 Andrew: All right. I want to start with, I'm going to link the Department of Homeland Security's timeline so that we can steel man the government's position. I want you to do this not because they deserve it. These people are bad actors acting in bad faith. But I want point out, I am doing this to point out that there is no legitimate argument to the contrary. Here's what the government says it's doing. Quote, The city of Portland has been under siege for 47 straight days by a violent mob, while local political leaders refuse to restore order to protect their city. Each night, lawless anarchists destroy and desecrate property, including the federal courthouse, and attack the brave law enforcement officers protecting it.

0:27:02 Andrew: This siege can end if state and local officials decide to take appropriate action instead of refusing to enforce the law, DHS will not abdicate its solemn duty to protect federal facilities and those within them. That's what Chad Wolf has said to summarize.

0:27:17 Thomas: All of that is BS.

0:27:18 Andrew: All of that is nonsense. So, um, so let's talk about what's actually going on. And again, DHS has issued a timeline. I've annotated that timeline because theirs is is nonsense. Their timeline does not begin on May 25th, where mine does. May 25, as I think everyone will remember, is the day in which George Floyd was murdered. It is worth emphasizing this, he was accused of having a counterfeit $20 bill, right? That was the reason He was being taken into police custody, which then led to Officer Derek Chauvin pinning him to the ground and kneeling on his neck for eight minutes and 46 seconds while George Floyd pleaded that he could not breathe.

0:27:19 Thomas: Yeah.

0:28:06 Andrew: We all know those events. So four days later were the first protests in Portland on May 29th. Here's how the government describes it. They say, violent anarchists broke a front window at the Hatfield Courthouse. Violent anarchists graffitied the Hatfield Courthouse. Overall, the cost of damages on federal property was estimated at $5,000. Here's what actually happened. A group called PNW, Pacific Northwest Youth Liberation Front, organized a peaceful protest. Hundreds of people were in attendance. They marched and demonstrated in solidarity with George Floyd. Some demonstrators broke away from that larger group and they broke windows and tagged buildings with graffiti, including the aforementioned Hatfield Courthouse.

0:28:56 Andrew: A, quote, small fire, this is from the Portland Police Department, a small fire was set inside the courthouse, is no corroboration that there was any any violence used at any point on this day. That comes from Portland police reports. So look, again, and we can talk about the strategy of breaking windows and graffiti, But there was zero violence, according to the Portland police. Police, however, responded by declaring the demonstration a riot and using tear gas and flashbang grenades to break up the protesters. That's day one. The next three days, all the government alleged.

0:29:43 Andrew: Now we're back to the DHS's timeline. Is that violent anarchists? And again, this is how they describe the protesters, the protesters are described as violent anarchist. That's their branding, I guess.

0:29:55 Thomas: They interview them about their political belief. I mean, it's it's weird to be like, because we don't want a black man to be murdered in broad daylight by a police officer, therefore we're anarchists. Who Don't you know, like, like, come on, you could be You could be a conservative as as could be and not want the police to murder a black man in broad daylight for no reason. Right.

0:30:09 Andrew: Yeah. Yeah, the like moms marching in between sort of the core PNY protesters, PNW protesters and the police, like somehow I doubt like there are hundreds of suburban moms who are like reading Bakunin and like, you know, let's tear down the mechanisms of the state like that. No, is not correct to call them violent. And and it is almost certainly.

0:30:39 Thomas: Yeah. I mean, this is just some McCarthyism bullshit. Right. I mean.

0:30:44 Andrew: Yeah, exactly. Yeah. There is no allegation of violence, even by the government, over the next couple of days. And it is undisputed that on each of those nights, the police responded with tear gas, flashbang grenades, rubber bullets, military suppression techniques. Techniques. Because of that, uh, two additional things happen. The first is the police set up a chain link fence around the courthouse to try and keep protesters out. We're going to talk about that in a minute. Um, and, uh various agencies, departments, individuals, and human rights groups went to the courts and got an order from the court, right? The U.S. District Court judge issued an injunction on June 9th blocking the Portland police from using tear gas to disperse protesters, okay?

0:30:47 Thomas: God.

0:31:41 Andrew: So in other words, it is established at this point in time that the reaction by the Portland police is disproportionate to the actual demonstrations that are going down. DHS describes then the week of June 6th through the 11th as "violent anarchists destroyed fencing surrounding the federal property." That's sort of true. And again, I want to speak to that a little little bit because destroying fences and barricades is a longstanding technique in what we would call nonviolent protests, even though, you know, you're sort of thinking like, oh, well, they're ripping down the fence and then like there's this mob that's going to get through.

0:32:26 Andrew: But actually, like it is part of protest tactics to say like, Oh, you've tried to say that this space is off limits and beyond debate. And we're showing that, no, it isn't. So is it destruction of property? It absolutely is destruction of poverty. In a great many cases, it's destruction of property that I would personally, again, don't take legal advice from this podcast, I would personally endorse. And what I think about here is I think about WHINSEC, which used to be called the School of the Americas, which is a school school at the Fort Benning Army Base in Georgia, in which the United States, by and through the CIA, teaches torture tactics to representatives sent from dictatorships throughout South America.

0:33:17 Andrew: It's a lovely quasi-secret program. And because of that, there is a dedicated group of protesters Protesters who will show up and do things like it would be the army has, you know, it's an army base. So, you know, they get to set up, you don't set up fences and protesters will come by and protest at the fence and like, you throw blood on the on wood and, you Know, attack the fence and and and tear it down and stuff like that. And it is a key aspect of the protests against the SOA. In any event, here's the police report of what actually happened.

0:33:51 Thomas: By the way, you're reading the police report. Portland police is total BS, too. But it's like even taking that source at its word.

0:33:59 Andrew: Correct. That is right.

0:34:01 Thomas: It's An incredibly racist police department. Like this, they're, the police department that had ties to like the Proud Boys and was like texting with them and like, "Oh, here's how you don't get arrested, we won't arrest you for the outstanding warrants." I mean, this is not, like, you know, I know Portland, you think of it as a liberal city, and I'm sure I'm telling a lot of people stuff they already know, but it's not as though the police in Portland are like hippies or something, they're they tend to be awful. Well,

0:34:01 Andrew: Yeah. Yep. Yeah. Yeah, that is correct. So that report is, quote, protesters had begun cutting out panels of the fencing and popping through it. This weekend, one demonstrator crawled through the fence and once inside the perimeter, mooned police officers, end of quote.

0:34:43 Thomas: Clearly they need to be executed. I

0:34:44 Andrew: Yeah. So again, we could argue back and forth over should you tear down the fence? That is definitely a property crime, right? But cutting a hole in a chain link fence and going through and showing your butt to the police, I

0:34:58 Thomas: Think, yeah, mooning, I feel like that's a protest test we can all get behind. That's just, that's just good, clean fun.

0:35:01 Andrew: Would like to be in front of. But well, yeah, however, right, whichever way, whichever way, is I don't have to look at Eli's ass is, is that, that's where I want to be. And, uh, the crucial fact omitted by the Department of Homeland Security, which repeatedly emphasizes this crime to the fencing, right, is that the oh, yeah, it's now defunct, sadly, but like the fence had its own Twitter account for a while. It was at Portland Fence, right? Like, and, and so eventually the police took down the fence, right, because it was clearly a symbol for we're

0:35:06 Thomas: Oh, I was thinking behind. Yeah. I don't know which way you're thinking of that, but yeah.

0:35:42 Thomas: Yeah.

0:35:43 Andrew: Not listening. Right. And they said, quote, the fence will be dismantled, which we hope will show, quote. Our willingness to have dialogue and peaceful communication. Right. So, again, the police themselves realize, oh, all right, man, we shouldn't have we should have put up a fence that says we're not listening. That says you're not welcome here. We're going to tear down the fence. I think that's really, really important for context. That occurred on June 15th. That's not on the government's timeline because, you know, that's not important. The damage to the fence, that'S important to document. The police voluntarily taking it down. Not so much. Also worth pointing out, during this time frame, Portland Police Chief Jami Resch stepped down because of mass public criticism over the use of tear gas, flashbang grenades, rubber bullets, those sort of things.

0:36:35 Andrew: We got the court injunction. The police continued indiscriminately to use tear gas even after the injunction was issued, because, again, when courts issue injunction, they don't say things like the police can't carry tear gas. They say you can't use tear gas to disperse protesters. And so then the police use tear gas to dispersed protesters and say, oh, well, we were doing that because, you know, we were in fear of our lives.

0:37:03 Andrew: Right. Never minding we're the ones in riot gear and they're over there, you Know, holding loudspeakers above their head and, you Know, singing and chanting. But in any event, blatant disregard for the court's order. And then culminating June 15th, Portland police takes down the fence. June 17th, another thing that's not in the government's timeline, is the Portland City Council passes their city's 2020 to 2021 budget. And that budget cuts $15 million from the police bureau. It cuts it from either external materials, right, that's new fun military toys, or personnel eliminating 84 jobs.

0:37:02 Thomas: Yeah, yeah.

0:37:49 Andrew: This is in direct response to the defund the police protests, right? And we know this because they had to amend the budget. So, by the way, just so you get a feel for the scope of this number, it was approximately $250 million, cut down to approximately $235 million, right? So, so when, yeah, when we say defund the police, right, we don't mean go from $250 million to zero. We mean don't do what the original budget had, which was they went from $250 million in fiscal year 19 to 20 to a proposed, with a proposed $3 million increase for 20 to 21. So it was an $18 million swing, right? And eliminate

0:38:10 Thomas: How are they going to cope?

0:38:33 Thomas: Yeah. That means they have to sell off one tank that they have for some reason. Yeah. Mostly tank operators and tank, tank polishers.

0:38:36 Andrew: 84 jobs, right. So yeah, that's right. Yeah. And I will include the budget in the show notes so you can go look that up for yourself. But I want to illustrate on sort of the side note. No, This proves demonstrations, protests, changing the narrative works, if not for defund the police. Portland police would have gotten 18 million dollars. Right. An additional 18 million bucks. Yeah, yeah.

0:39:03 Thomas: Yeah. This nationwide, Yeah, we're focused on Portland because of the, you know, what Trump is doing there, but I, I hope no one takes this to mean that we think the this is like the locus of where the protests are happening. I mean, the protests are happening everywhere around the country. There are much more, you know, long-standing grievances in other areas that have been going on, um, but as a whole, Black Lives Matter, this latest iteration of the Black Lives Matter protest, is the most successful protest in this country's history, I've got to think. Like, I mean, it really is the biggest, they tried to measure, it's the biggest civil rights demonstration of all time in our country. And look at all the success it's had. So lest anyone think this, oh, this is turning people off. It's just not. Well, all those couple violent people stomping on a fence that doesn't have feelings, that's just going to turn the whole thing off. Well no, actually it's working.

0:39:14 Andrew: Right, yeah, Couldn't, I couldn' have said that better myself. So do want to highlight something because it is, I think, the only fair point that the police and the Department of Homeland Security have. Have, and and I want to illustrate, right, we have listeners who are participating in these protests on June 20th, the first allegations that among the protesters are the use of various commercially available lasers that are being aimed at the eyes of law enforcement personnel. At this point, uh, just Portland police, there are no federal authorities on this, on the, on the sidelines, um, and and and I want to say very explicitly, look, we're not going to get derailed, right? We're not gonna spend the rest of this episode talking about shining lasers in the eyes of cops, because as far as I can tell, it's a handful of people doing that.

0:40:44 Andrew: But this is really serious, right, like we're defending protest tactics and nonviolent civil disobedience. People get blinded when you shine lasers in their eyes. You shouldn't do that if you have friends who are doing it or associates. Don't don't do that. But again, if you ask, is standing next to somebody who might have a laser who is trying to cause harm to somebody grounds for being arrested or shot at? The answer to that is absolutely not. And we're going to get to that in legal section. So, again, I don't want to make this, I don't wanna fall into the the trap that, you know, the government always tries to do of, you know, focus on the violence. But but that is the one substantiated thing that, you know, don't don't, don' do that.

0:41:36 Andrew: That's not, it's not a legitimate nonviolent protest tactic. And, and you could blind somebody and, and that's a that's serious thing not to do. Okay, now, jump ahead to June 26. That is when the President issues his executive order deploying federal troops to American cities to protect American monuments, memorials, and statues and combat criminal violence. And that's why all of this is focused on the federal courthouse, right? Section 5 of that executive order authorizes the Secretary of Homeland Security to provide appropriate and consistent with applicable law personnel to assist with the protection of federal monuments, memorials, statues, or property.

0:42:22 Andrew: And a federal courthouse is federal property. So pursuant to that EO, the Department of Homeland Security sent teams of federal agents to the city. They came from the U.S. Marshal Service, Federal Protective Services, U.S. Customs and Border Protection, and Homeland Security Investigations. And within that, you need to know two specific abbreviations. And I'm to link to the New York Times article on it. Don't have time to go fully down this rabbit trail. But BORTAC, which is the Border Patrol Tactical Division, and SOG, the Special Operations Group, which is a division of the U.S. Marshals. The best way to describe this is these are not experts who are trained in managing protests.

0:43:11 Andrew: These are the equivalent of those agencies' SWAT teams, right? They are engaged in paramilitary military tactics to combat armed assailants, right. This is how they train.

0:43:40 Andrew: This and explains the rush to violence. That's June 26th. By the way, government's timeline doesn't mention June 26. Doesn't think that that's an important date in explaining what's going on. And now we get to the two main incidents that I think everyone has seen on the news. The first is July 11th, in which a peaceful protester, Donovan Labella, was carrying a a speaker over his head. And you can see camouflaged troops without identification throw a canister at him. Again, court's injunction applies to the Portland police. It does not, sadly, apply to federal troops. So they are very clearly using this canister of tear gas to disperse a peaceful protest.

0:44:32 Andrew: And Donovan first tries to kick it away while he's still holding the speaker. But the speaker is huge, right? I mean, it looks, right, it's way bigger than, you know, John Cusack can say anything, he sets the speaker down, picks up the canister, and this is crucial. And again, I'm going to link the video in the show Have you seen the video, Thomas?

0:44:54 Thomas: I've seen so many of these, I don't know, probably. Oh,

0:44:55 Andrew: Yeah. Is characterized by the government as throws a canister of tear gas back at the federal officers, right? And if you were inclined to steel man that, you might say, okay, well, never mind the fact that you threw it at him. Like, yes, is it dangerous to throw tear gas at federal officers, even though, you know, they're equipped in riot gear and they have face masks and all of that. That description, if you watch the video, is is so unbelievably misleading that that I would encourage you to watch the what he does. The the the officers are across the street, right? They are a hundred plus plus feet away.

0:45:44 Andrew: And what he does is reach down and an underhand toss in a way that you might toss a beanbag to a three-year-old. Like it's hard to even see the movement, right? Like it is this tiny little thing where you're like, man, I don't know if that canister goes off if you've gotten it far enough away from you, right. Reaches down, gives an underhanded toss of about five feet to the canister. And then he picks the speaker back up again. And Then you see him crumple as he is shot in the face with a rubber bullet.

0:45:49 Thomas: My god oh,

0:46:15 Andrew: Donovan LaBella was then hospitalized with serious injuries. The government has no comment on July 11th, does not try to defend itself in this case.

0:46:14 Thomas: My God, and Sorry, is is this, do we know, is that, was that, this was federal police doing that rubber bullet shooting or, I'm

0:46:33 Andrew: These are the BORTAC, Patrol Tactical Division officers of the Department of Homeland So

0:46:42 Thomas: Gonna ask a real stupid question, what border is anywhere near Portland? I'm not great at geography. Oh,

0:46:49 Andrew: Going to jump ahead to the legal analysis part. Here is the answer, because part of this is deliberate, calculated cruelty by folks who understand some of the law and have constructed a fig leaf to try and justify their actions. In other words, this is not just out of control. This is deliberately pre-planned. The answer to your question is 8 U.S.C. 1357, which allows the Department of Homeland Security to disregard the Constitution. The section is called subsection A is called powers without warrant. Right. So in other words, things they can do without having probable cause.

0:47:37 Andrew: And one of the things they Can do is, quote, within a reasonable distance from any external boundary of the United States, end of quote, they can board and search for aliens, any vessel, any railway car, aircraft, conveyance or vehicle, or within a distance of 25 miles, have access to to private lands for the purposes of patrolling the border. I will tell you that the underlying CFR regulations define reasonable distance as 100 miles and define any external boundary of the United States as including the Pacific Ocean, the Atlantic Ocean, and

0:47:43 Thomas: My gawd okay

0:48:18 Andrew: The Gulf of Mexico.

0:48:18 Thomas: I was gonna say it's still not a hundred miles from any border. I mean, I don't know a lot, but I know that you count the ocean. So like aliens who are swimming across the Pacific.

0:48:22 Andrew: So Uh, yeah, no, you Count We're Swimming from Japan to Oregon, uh, that is correct, um, you, you, you count the ocean, the net effect, yeah, the net effect of this is because if you think about where our cities are, right, as a historical function, right, like you, they're All ports, right? Like, like, that's how cities get colonized. And so the

0:48:34 Thomas: There's like 5,000 miles away. Oh yeah, they're all ports. They're all, yeah. So you get to have secret police come to basically any city for the most part.

0:48:54 Andrew: The the ACLU has estimated that two thirds of the U.S. population falls within this hundred mile zone.

0:49:02 Thomas: Two thirds. I mean, that's just meaningless.

0:49:09 Andrew: It it it it

0:49:09 Thomas: That becomes meaningless. This once, you're saying, that's like within your border area, like that, okay, so that's the whole country, yeah.

0:49:16 Andrew: It is two thirds of the country. That is correct. It is virtually every major city in the United States. Right. Because right. Because Chicago is within 100 miles of the Canadian border, I think I haven't researched that one. I know I know Portland is more than 100 miles from Canada, but yeah.

0:49:32 Thomas: Border gets a little weird by the Great Lakes, I never know, like it's kind of it's real squiggly. It might not be actually Chicago, let's see, well it's close. I don't know.

0:49:36 Andrew: Right. Right, right. Yeah, it's close. It is obviously some of the outlying suburbs are not. So that's one source of population that is not within this order. But virtually every other city is within 100 miles of some border of the U.S. Portland is 88 miles from the Pacific Ocean. Again, Portland does not have an illegal immigration problem. There are not, you know, hordes of illegals washing up on the Oregon shores.

0:49:41 Thomas: Yeah, it's Just ridiculous.

0:50:14 Andrew: It's nonsense. But that's why, and that is part of, you You know, what this highlights is that that that law and the and the corresponding regulations are are valid law. It's a thing we have to change. So

0:50:14 Thomas: Wow. Absolutely. Is it has it always been like this, but it's just being interpreted more broadly, or is this just a total valid interpretation of this BS law that we need to get rid of the

0:50:37 Andrew: The answer is the law. The law was passed in 1952, and the law just says within a reasonable distance. But then the underlying regulations say, you know, 100 miles from the border is a is a reasonable distance. And again, you know, 100 miles from the Mexican border, you want to make some arguments, go ahead, make those arguments. A hundred miles from, you know, Lake Ontario.

0:51:02 Thomas: Ocean, yeah.

0:51:03 Andrew: Yeah. Or or the Pacific Ocean seems insane. And and this highlights again that the incoming administration needs to do more than just overturn these policies. They've got to change the law. Right. Because we have a second class legal system when it comes to aliens and people who we think might be aliens. And and for for far too long, you know, those of us on the left have kind of accepted that as part and parcel of, you Getting other stuff done for other people. And what the Trump administration is doing is using that loophole as cover for its activities.

0:51:04 Thomas: Yeah.

0:51:52 Andrew: Now, again, that doesn't make what they're doing not illegal. And I want to get to that explanation of that. Um, but that's why, right? That's why DHS is in Portland. That's the authorization. They're within that hundred miles up. Addition to Donovan Labella, you may have seen on July 15th, our friend Greg Doucette, who has tweeted out almost a thousand now, hundreds and hundreds. This is example number 775 of the police using inappropriate tactics on peaceful protesters out a video, which I'll link in the show notes of in camo driving by grabbing somebody against their will, who's screaming and protesting and throwing them into a van and driving off.

0:52:41 Andrew: And DHS was asked to explain what the hell are you doing? And their answers are to that were nonsense and were in violation of the law. And I want to talk about the legal standards there. Um, but, but if the legal question is, can they throw you in a van because you're in a crowd where people are doing dangerous things? Let me be super clear here. Don't take legal advice from this podcast, right? Um, not, it doesn't do you a lot of good to be beaten by the police and then say, well, you know, I was technically correct, right.

0:53:19 Thomas: Yeah.

0:53:19 Andrew: Right? They do not have the right to do so.

0:53:23 Thomas: Part of the just the horrible fascist BS of all this is that you're not going to do anything in the moment. I mean, what are you going to tell, I, I have rights, oh, okay, sorry, we'll stop putting you in this unmarked van, like, we're, there's nothing, I don't think there's anything that you and I are going to do or say that's going to stop this happening in the moment. It's just probably more about like, will know, who can sue whom and will it go through after this? Well,

0:53:43 Andrew: Well, there are two things, I want to talk about the things legally you can do in the moment, understanding that somebody who is trained in special weapons and tactics is almost certainly not trained in law enforcement and crowd dispersal. So the legal rights that you may have may be blatantly disregarded, have been blatantly disregarded. And then we're going to talk about what you can do when that happens. But yeah, the law is super duper crystal clear and has been for four plus decades. It's a case called Ibara versus Illinois from 1979, which says mere pro-pinquity, I think is how you pronounce that word. It just means proximity. So mere propinquity to others suspected of criminal activity does not, without more, give rise to probable cause.

0:54:36 Andrew: So in other words, um, you shouldn't be shining lasers at, at the eyes of law enforcement officials, but just because you're at a protest where other people are doing that does not mean they can seize you, does not means they can arrest you.

0:54:50 Thomas: I thought the whole thing was the people they're taking allegedly are guilty of like, you know, graffitiing something a year ago, or months ago.

0:54:58 Andrew: No, no. That's that. And that's why I want to talk about like how the police interact Because the person who was thrown in a van, DHS concedes that that person was then let go, that they did not have a basis to arrest that person. Right. This is being used as crowd suppression tactics. And and it's it's patently illegal. Illegal. First, I want to dispense with the question people have asked, do these federal officers have to identify themselves? And the answer, as far as I can tell, is no, no, they don't. Thankfully, Alexandria Ocasio-Cortez, yeah, has introduced a bill.

0:55:12 Thomas: Wow. I was gonna say, I think AOC wants to change that, maybe it's something we should change.

0:55:40 Andrew: It 100% is something we should change. It is the Law Enforcement Identification Transparency Act of 2020. I will link the text in the show notes. I have read it. And it just straightforwardly says that within 90 days, the head of each federal law enforcement agency shall promulgate a policy that requires that any federal law reinforcement officer in uniform or in plain clothes employed by a federal law law enforcement agency make visible the following identification while on duty or serving the public as a federal law enforcement officer. And that would be their last name, the name of the agency, and their badge number or other identification number.

0:55:40 Thomas: Well, this Is the scariest part to me, because you don't know how likely this is, but like, there are a lot of white supremacist groups in Oregon, and the idea that just if there's any van full of people in military-looking garb or whatever, that that they're just cool to arrest you, like that's totally fine, that they're going to abduct you in an unmarked van, the idea that like you're just supposed to be cool with that is is absurd to me. Like, what are the odds that there, there couldn't be somebody else impersonating an officer or doing stuff like that, like this is terrifying, and I, I would understand why people would be so scared about this, am

0:56:56 Andrew: Yeah. And and you should be. And the things that should help guide you are the rules that federal officers are are required to abide by. Right. And so it's it's why those protections are there. Right, so that the very first thing that I want to talk about, we've talked about this a little bit on the show before, but but but that is officers and police officers have wide latitude to engage in what they call voluntary interviews. Right. Cops in particular are super good at leaning on and making you establishing that something is voluntary unless you ask the right questions while while still leaning and coercing you into cooperating with them.

0:57:43 Andrew: And the important thing about a voluntary interview is that I have to Mirandize you. They don't have to inform you of your rights. You're just chatting with the cops. You are allowed to. They are allowed to talk to citizens. And so long as it is, quote, voluntary, there is nothing you can do about it. And, and so I want to tell you, again, none of this is legal advice. Cops are super tricky about this, right? Their goal is for an interview to be considered voluntary or non-custodial. Right. That means they don't have you in custody. There is, God help me, one weird trick that you can use. And and that is, yeah, it used to be since that has been appropriated by crazy people.

People don't ask, am I being detained? But ask this question. And I'm 100 percent serious about this. Ask the question, quote, Am I free to go? End of quote. And if you get, if you don't get an answer, ask the question again. I'm asking, am I free to to go or not. If they say yes, go, right? Don't use any, right, the threats and coercion, this will go so much worse, right. That means it is non-custodial. That means your remedy in a non-custodial interview is to leave, is to say, this interview is over. I decline voluntarily to be interviewed. If you are not free to go, that means you are

0:58:25 Thomas: I, being detained, uh, all

0:59:14 Andrew: Being arrested. There is not a middle ground, and if you are arrested, they must have probable cause to arrest you, and uh, they must then Mirandize you. They must inform you of your right to have your lawyer present, and you should say, I demand to speak to my lawyer and will otherwise exercise my right to remain silent. Those are the only two options when the police take you into custody, which includes throwing you in a van, right? If the moment they throw you in the van, they have, against your will, when you say I declined to go voluntarily, and they throw you in the band, you are being arrested. And the question is, can you sue federal officers for for arresting you without probable cause? You can, we're going to talk it.

1:00:01 Andrew: But absolutely, that is a violation of your Fourth Amendment right against search and seizure to be seized without probable cause in a custodial way. I also want to let you know, I've said that when you're picked up and thrown in a van, right, that's a binary choice, right? Either it's voluntary or it's not or it'S an arrest. And if you are illegally arrested, that violates your constitutional rights. You have a cause of action against that federal agent. There is a thing in between, and you are going to hear this articulated by the government. And I want to explain exactly what it is. And it is called a Terry stop.

1:00:47 Andrew: And that is after a case called Terry versus Ohio from 1967. And the way to think of a Terry Stop is Terry is stop and frisk. That's exactly what the case was. Yep. It involved a police officer who was walking the beat and saw two guys and said, quote, I'd never seen the two men before. I was unable to say what precisely drew my eye to them. But I've been a policeman for thirty nine years. And when I looked at them, they didn't look right to me. And of course, I'm this is I'm quoting directly from the Supreme Court opinion. Opinion. This opinion is not going to go well, by the way, even for 1967. So Officer McFadden follows him around, and these guys are just kind of walking up and down the street. And again, quoting Officer McVadden, he says, I suspect that they were, quote, casing a job, a stick-up. And then said, and I thought, you know, if they were going to stick up a place that they might have a gun.

So then Officer McPhadden goes up to the three men, identifies himself as a police officer and asked for their names. And then when one of the men mumbled something as a response to the inquiries, he grabbed Terry. And again, this is from the Supreme Court saying that he was allowed to do this, by the way, spun him around so that they were facing the other two and then patted Terry down on the outside of his clothing.

1:00:59 Thomas: Oh, geez. Mm-hmm.

1:02:17 Andrew: On the left hand breast pocket of Terry's overcoat, Officer McFadden felt a pistol. You then searched the other two guys, found weapons. They were tried for illegal possession of firearms. They then moved the court to suppress the evidence. They said, look, this you didn't have a search warrant. You didn't arrest us like this. This officer just came up to us on the street and patted us down and found the weapons. You should suppress that. When when the court denied their motion to suppress, they pled guilty and then appealed that on the grounds that the lower court should have granted the motion to compress. Press. The government going to the Supreme Court argued that the Fourth Amendment didn't apply here.

1:03:02 Andrew: Right. And they said that's because this was a search incident to an arrest, which, by the way, is a legitimate exception to the search warrant requirement. Right? Like if you have probable cause to arrest somebody, you also have probable cause just to search. You don't have to to say like, yeah, exactly, right? The only problem here was, no, it wasn't, right, That it was undisputed at the Supreme Court that there was not probable cause to believe that these guys were going to commit a crime, right. That you could not have gone to a judge and gotten a search warrant or an arrest warrant based upon Officer McFadden's hunch of, "I didn't quite look right," right, that's not what our law says. But the Supreme Court decided to make up a brand new doctrine in order retroactively to make this legal. I'm not making this up. Here's what Terry says. Quote, "We need not develop at length in this case the limitations which the Fourth Amendment places upon a protective seizure and search for weapons. These limitations will have to be developed in the the concrete factual circumstances of individual cases."

1:03:16 Thomas: Yeah. Search their person. That makes sense. Right.

1:04:10 Andrew: Then they add, the sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, love 1967, or other hidden instruments for the assault of the a police officer. And so that standard is now a standard less than probable cause, but more than just new. And it is called articulable suspicion. And notice that under Terry, even today, it must be articulatable suspicion that somebody is about to commit a crime and that they may be armed and are presently dangerous.

1:04:55 Andrew: As you might imagine, since that was all totally made up and like Like even the Supreme Court in granting that made up, right, like that wasn't what the officer was arguing even in that case. You might imagine that that that has been grossly expanded to allow wide ranging stop and frisk, which it

1:05:05 Thomas: Yeah, well, I was gonna say, but, I thought stop and frisk, frisk was declared unconstitutional, or, or was it just, like how they are going about it?

1:05:21 Andrew: Was. That was how New York was going about it without any articulable suspicion, right? So the articulables suspicion rule is still good law, and it's been been interpreted very, very, very broadly. Encourage you to read Douglas's dissent, uh, because it's ben lost to history, but he's obviously right, and he says, you know, "Today we hold the police have greater authority to conduct searches and seizures than a judge," and that turns what was then 150 years of case law on its head. He was absolutely right. But, you know, was a dissent, so it's not a lot of comfort. So, so put a pin in those, in the Terry stops, for a minute, because that police officers and federal officers have wide ranging powers, it still is confined to a reasonable pat down to try and discover weapons.

1:05:24 Thomas: Okay, gotcha.

1:06:18 Andrew: And neither of the two public cases that we talked about remotely fit that, you know, it does not. You do not have a Terry right to shoot somebody in the face with a rubber bullet.

1:06:30 Thomas: Yeah or kidnapping it doesn't cover kidnapping

1:06:31 Andrew: Yeah, it does Not. So, yeah, at the moment in which you are abducted by federal agents, that is an arrest. And it is either good or it isn't. So now the question is, what rights do people have in Portland? And there are four categories of of that that I want to discuss here really, So if your rights are violated, there are a variety of remedies that are available to you. And I'm just going to have to do this at a top level. Running way over time. All of these are valid forms of relief, And we will probably do deep dives as as as events warrant. First, presently, officials in Portland have petitioned for injunctive relief.

1:07:19 Andrew: I will link that pleading in the show notes. It is stylized as a class action on behalf of journalists and legal observers. Observers. And given the way it's pled, right, they have a chance of this being a valid class action, right? Because the injury of which they're complaining is the violation of their First Amendment rights, right—the right to peaceably assemble. And that's something where the injury is uniform across the class. So it's a really, really smart approach, and it is—and I think they're likely to get injunctive relief to tell DHS and U.S. Marshals, as well as the Portland that you cannot use these techniques to disperse or suppress a crowd. That's the first. The second is you can bring a private lawsuit against the federal officials who have kidnapped you.

1:08:08 Andrew: It is a really, really narrow area that we're going to have to do a separate deep dive on called Bivens, right? Right. And it's after a case called Bivens versus six unknown federal narcotics agents from 1971. It's super narrow, but it very, very clearly applies in this case. Right. The Biven's case was the exact same kind of situation where agents of what was then called the Federal Bureau of Narcotics. I love cases from 1971, entered a guy's apartment, arrested him for alleged narcotics violations. Violations, as the Supreme Court says, they, quote, manacled petitioner in front of his wife and children and threatened to arrest the entire family. They searched the apartment from stern to stern. I think that's stem to stern, right?

1:08:51 Thomas: Lived on a boat or yeah.

1:08:54 Andrew: Language in the 1970s was amazing. And all of that was nonsense, right. He was then taken to the federal courthouse where he was interrogated, booked and subjected to a visual strip search. And they lacked probable cause. So the Supreme Court said that violates his Fourth Amendment right. And when federal officers violate your Fourth Amendment, right, you have a right to sue them for damages. It is called a Bivens action. It is super narrow, but it 100 percent applies in this case. We will have to do a separate episode on qualified immunity, which covers when the police do it under Section 1983, because there's a lot of nuance there. But when federal officers, there is no corresponding qualified immunity other than a case from over 100 years ago called Imre Nagel, which says that when U.S. marshals are acting within their authority, they have immunity, Which is true. But then that just means the question in litigation comes down to, was this within their authority?

1:09:56 Thomas: Yes. What's their authority. Yeah.

1:09:58 Andrew: That's right. Yeah. And if the arrest is bad, that's not within their authority. Finally, criminal prosecution is available. This is 18 U.S.C. 242 and it says, whenever anyone under color of law subjects any person to the deprivation of any rights, privileges, or immunities protected by the Constitution, they shall be fined or imprisoned, not more than a year or both. Look, this DOJ is not going to bring charges against these officers, but the next one might. And as we look towards a new administration, this is an absolutely question I would ask of Joe Biden. I would asked of the Biden campaign. Camo-wearing federal agents from BORTAC and the U.S. Marshal Service should be subjected to potential liability under 18 U.Sc.

1:10:02 Thomas: Right.

1:10:52 Andrew: 242? Should they be charged? Should they been arrested? Arrested and get an answer, because that's part of how we we stand up to this is by saying, yeah, when law enforcement officials break the law, they should be arrested a fourth area. And we're to talk about this next week. And that is it is possible there is a one weird trick that may undo everything that the Department of Homeland Security has done for the past six months. And I'll tell you about that next week.

1:11:20 Thomas: Wow. Is it it called voting Oh?

1:11:22 Andrew: It isn't, but it I'm excited about it. And I will tell you all about that next week?

1:11:23 Thomas: Okay. All right. What a cliffhanger. Well, tune in Next time, folks. Right, well, um, that was all very important stuff, and I'm glad we did it and went long and didn't even cover all the stuff that you could have, Andrew. So thanks to Andrew and all the researchers who helped you, um, that is just a mess. We're gonna go ahead and skip T3B this week, uh, no, no time, but this is more important. We'll get back. This is much more important than a non-lawyer trying to answer law questions, but arguably, arguably.

1:11:31 Andrew: Yeah.

1:11:56 Andrew: I mean, they're at least of equal importance, but yeah,

1:11:59 Thomas: Yeah. So in that case, let's thank our new patrons over at patreon.com/law, enjoying all the goodies, all the bonus stuff, early episodes. I want to emphasize, by the way, I've been getting the Tuesday episode out on on Sunday night, my time every week now.

1:12:15 Andrew: You've been doing an amazing job of that

1:12:17 Thomas: And I make Andrew do the, to the T3B winner that at that time. So that, so that we have it all. So make sure if you want that episode early at each and every week and the Friday episode, usually a little early before the normies get it, hop onto patreon.com/law. And, and I will just quickly thank our new Patrons Seth Gately, GSV Gray Area. The US to Australian dollar exchange rate is hurting my bank account. Jai Penny, Taylor Lankford. Hi, I'm Hadleigh Roberts. You might remember me from such podcasts as OA115.

1:12:53 Thomas: What is that? Cielo, Matt Rogers for Virginia 47th House District. Good luck.

1:12:52 Andrew: Oh, well, good luck, man. And

1:13:02 Thomas: Benjamin Taylor and Steve Brimley. Thank you folks so much for pledging. And stay safe out there, everybody. That's our show. This is a disaster. This is not fake news. This is absolutely a disaster that Trump is trying to pull off here, and sending secret police to arrest people, it's unbelievable. I'm so mad every day about this. We have to fix this. So stay engaged, stay motivated, vote, do everything we need to do.

1:13:29 Andrew: And, if you are protesting in Portland, stay extra safe, and you, you, you really are a hero. We, we sincerely mean that, and thank you.

1:13:30 Thomas: Alright.

1:13:39 Thomas: Thanks so much for listening, everybody. We will see you next time.

1:13:42 Clip: He's not even a lawyer and he's kicking your ass.

1:14:14 Clip: This podcast is a production of Opening Arguments Media, LLC. All rights reserved. It is produced with the assistance of transcriptionist Heather Loveridge, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Deborah Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki. Follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Argiments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.