What follow are the first few paragraphs of Andrew Crespo's 7-25-20 Lawfare blog post entitled "Unpacking DHS’s Troubling Explanation of the Portland Van Video":
Over the past few days, millions of people have seen a now-viral video in which two federal agents dressed in full combat gear removed an apparently peaceful protester from the streets of Portland, Ore., and carried him away in an unmarked van. Stories have emerged of other people being taken or pursued by federal agents in a similar fashion. Meanwhile, troubling videos show federal agents in Portland beating a peacefully resolute U.S. Navy veteran and, on a separate occasion, shooting a man in the face with a nonlethal munition, which broke his skull.
As criticism of these events rolled in—including from virtually every relevant state and local official in Oregon—the Department of Homeland Security scheduled a press conference earlier this week to try to reclaim the narrative. If the point of that press conference was to reassure an anxious nation that this unfamiliar and recently constituted federal police force is following the law, it likely achieved the opposite effect.
In particular, there is a two-minute segment of the press conference that is both revealing and highly disturbing. It shows that one of the top commanders of this new paramilitary federal police force—Kris Cline, Deputy Director of the Federal Protective Service—apparently does not know what the word “arrest” means. To say as much might seem like harping on semantics or, worse, like picking on Cline for speaking inartfully. But it is absolutely critical to unpack and examine Cline’s words—because the word arrest is one of the most important words in the constitutional law of policing.
Simply put, for an arrest to be constitutional it must be supported by probable cause. This means that the arresting officer must be able to point to specific facts that would cause a reasonable officer to believe that the person being arrested has committed a specific crime. If, on the other hand, the police have not arrested someone but have instead conducted only a brief investigatory stop, they need substantially less proof that the target of their attention is engaged in criminal activity. And if the police initiate instead what is often termed a consensual contact—as would occur if, say, a uniformed officer walked up to you and said, “hey, I want to ask you some questions”—well, in that case the Fourth Amendment simply does not apply, which means the officer does not need to have any reason to approach you.
Arrests, stops and contacts carve up the universe of police-civilian interactions in the United States. So, when I say that Deputy Director Cline does not appear to know what the word “arrest” means, what I am really saying is that he does not know where the basic and essential legal lines are that mark the bounds of his agency’s lawful authority. That is a problem.
This post expands on a Twitter thread I wrote earlier this week. It is a deep dive into the critical two-minutes of the DHS press conference, during which Cline made a series of comments that lead to only one of two possible conclusions: Cline does not know what the word “arrest” means. Or, if he does, he thinks no one will call him out for saying something that is patently untrue. Either way, he is wrong.
To read the entire blog post, click HERE.