portland – Techdirt (original) (raw)

Court Shoots Down Portland’s Attempt To Dodge Protest-Related Lawsuits By Citing Insurance Loophole

from the that's-not-why-that's-there dept

Protests ignited by Minneapolis police officer Derek Chauvin’s murder of an unarmed black man (George Floyd) spread across the nation following that horrific event. And these protests against police violence went on for months, prompting a federal response from an irked president, who declared Portland, Oregon one of many “anarchy jurisdictions.”

The Portland police had their own problems dealing with demonstrators and journalists. The arrival of federal officers compounded the problems. Litigation ensued, resulting in court orders forbidding federal officers (as well as local cops) from violating rights of journalists, lawyers, and legal observers who were there to ensure the protests were documented and (shocker!) rights weren’t violated by the government.

These court orders were routinely disobeyed. And police responding to anti-police violence protests routinely proved protesters’ points by engaging in violence. More litigation ensued.

The city of Portland is trying to talk its way out of being held at least partially responsible for rights violations and violence perpetrated by its employees, a.k.a. Portland police officers. A lawsuit filed by Portland resident Meghan Opbroek alleges she was severely injured by a flashbang grenade fired by Portland PD officers.

The city’s lawyers have asked for the lawsuit to be dismissed. It won’t be, but the way the city asked is particularly novel, if not more than a little insulting to the intelligence of the court, never mind the injured plaintiff. (via Willamette Week)

The federal court quotes heavily from the magistrate judge’s Findings and Recommendations (F&R). And the city of Portland quotes one particular clause of the state’s tort laws — one it hoped would allow it to avoid this lawsuit altogether. One almost has to admire the chutzpah needed to lob this into court with hopes that it would stick. From the decision [PDF]:

The F&R begins with a statutory interpretation of ORS § 30.265(6)(e). This section provides an exception to the Oregon Tort Claims Act’s (OTCA) waiver of immunity—that is, this section preserves immunity—for “[a]ny claim arising out of riot, civil commotion or mob action or out of any act or omission in connection with the prevention of any of the foregoing.” Id. Neither federal nor state courts have thoroughly analyzed this statutory provision. This provision determines whether sovereign immunity shields the City from Opbroek’s state law claims in this case. The City argues that ORS § 30.265(6)(e) offers expansive protection against liability in circumstances of civil disobedience. According to the City, this immunity protects against any claim either arising out of a riot, civil commotion, or mob action, or based on any act or omission that the City undertook to prevent the same. This Court would thus lack subject matter jurisdiction over Opbroek’s state law claims against the City under this interpretation.

That’s the legal theory: the city claims it is immune from any lawsuit dealing with anything happening in any riot, no matter what. But, as the court points out, this loophole in the state Tort Claims Act isn’t meant to be interpreted as blanket immunity. Instead, the loophole is there to ensure the city can actually obtain insurance.

The F&R, however, agrees with Opbroek that the text, context, and legislative history of ORS § 30.265(6)(e) suggest a different reading. According to Opbroek, the Oregon state legislature intended this provision to help public bodies get liability insurance by providing immunity when third parties suffer damages as a result of a riot, civil commotion, or mob action that the public body allegedly causes or fails to prevent.

It’s not to shield the city from lawsuits alleging harms caused by its employees. It’s meant to prevent the city from being held directly responsible for harms caused to third parties by other third parties. Nothing in the law suggests otherwise. And neither does anything said by lawmakers back in 1969, when this loophole was first created.

See H.B. 1515, 1969 Leg., House Judiciary Comm. Minutes (Or. 1969) (“[This section] does not bar claims for torts committed by public employees during the course of civil disturbances but would preclude claims based on a theory that a public body caused or failed to prevent a civil disturbance. Liability insurance policies commonly exclude coverage of this risk.”)

That’s pretty much the final word on the subject. Legislators clearly never intended this loophole to be used to raise an immunity defense in court and the court sees nothing in the law or the intent that supports the city’s creative interpretation.

On top of that, the court takes issue with the city’s representation of the event in which the plaintiff was injured as a “riot.”

Even if the Court were to adopt the City’s interpretation of ORS § 30.265(6)(e)—which it does not—the Court still would need to determine whether the gathering at issue was a “riot, civil commotion or mob action.” These terms are not defined by the statute. To draw the line between protest and riot, the Court would need to consider, for example, facts related to the reasonableness of and danger presented by the participants’ actions. Such a determination would also necessarily tread on questions relevant to the merits of Opbroek’s claims that the City assaulted, battered, and acted negligently towards her by deploying a flashbang grenade that caused severe injury. Accordingly, the “resolution of the jurisdictional question is dependent on factual issues going to the merits” and the two thus intertwine. Rosales v. United States, 824 F.2d 799, 803 (9th Cir. 1987). Making a jurisdictional finding would therefore be inappropriate at this stage even under the City’s statutory analysis.

The lawsuit continues. And the city’s lawyers will have to spend a bit more time digging into the state statutes to find another way to score an early exit from this lawsuit. It’s unlikely such an outlet exists. But for now, someone injured by police violence at an anti-police violence protest still has a shot at holding the city accountable for being unable to control its cops.

Filed Under: portland, portland pd, sovereign immunity

Declassified Report Shows DHS Tried To Fulfill Trump’s Antifa Fantasies When Handling Portland Protests

from the fake-it-until-you-can-maybe-make-something-of-it dept

After weeks of protests erupted following the murder of unarmed black man George Floyd by Minneapolis police officer Derek Chauvin, President Trump made it clear he felt the protesters were the real problem. As he stated immediately following his election, he was here to end the “dangerous anti-police atmosphere in America.” He followed through with this threat by scrambling federal agencies to Portland, Oregon to quell dissent.

The DHS and its posse rolled into Portland, Oregon in mid-July and immediately made its presence known by dragging protesters into unmarked vehicles in order to subject them to interrogations in unknown buildings, hoping to put as much distance between protesters and their rights as possible.

Then they began assaulting protesters, journalists, legal observers, and others on the scene of nightly protests. This resulted in lawsuits. And the lawsuits resulted in federal court orders forbidding federal officers from assaulting journalists and legal observers. This did not stop the assaults. More court orders followed, handing down sanctions for the continued violations of the original court orders.

Now, thanks to Ron Wyden and his release of two previously redacted reports, we have more evidence of the DHS’s overreach and its abuse of its powers to convert its direction to protect federal buildings into a witch hunt for Trump’s favorite protest boogeyman, Antifa.

Much like ICE chose to falsify reports and engage in questionable enforcement efforts in order to stroke Trump’s ego and indulge his bigoted fantasies about America being overrun by dangerous immigrants, DHS chose to focus its energy on making Trump’s Antifa conspiracy theory become reality. (That Donald Trump considered a group that declares itself to be “anti-fascist” to be the biggest concern during anti-police violence protests says a few things about Trump’s desires and interests, none of them good.)

The two reports [PDF] (one from DHS Office of Intelligence and Analysis [I&A] and one from the DHS itself) show DHS agents and officers were pushed by certain officials to engage in unfettered surveillance of protesters in hopes of finding a bunch of Antifa stuff that might make President Trump look a little less full of shit.

The I&A report is shorter, drier, and doesn’t really delve into the details that underlie its findings that the Portland operation was, to paraphrase, a mismanaged clusterfuck. Training was inadequate. Agents and officers weren’t sure which offices they were supposed to report to. On the whole, though, this report is largely exonerative, showing the DHS’s Office of Intelligence and Analysis largely believes that — training and chain of command issues notwithstanding — the DHS and its attached personnel did nothing wrong.

I&A did not produce “targeting packages” identifying lawful protestors for additional collection or analysis. I&A produced working materials, including “Baseball Cards,” a colloquial term for an “Operational Background Report,” for individuals arrested and/or charged for violent acts, either related to attacks on critical infrastructure, law enforcement resources, or for potential acts of domestic terrorism. These operational background reports included past criminal history, travel history, derogatory information from DHS or Intelligence Community holdings, as well as any publicly available social media potentially relevant to identifying indicators of domestic violent extremism or coordination among violent actors.

Sounds great. But it simply isn’t true. Either field officers were lying to I&A officials or the I&A is lying to its Congressional oversight and the general public. The second report contradicts pretty much everything in this statement from the I&A.

The second report notes the DHS’s intelligence collection services began to be overwhelmed in 2017, as the public tide turned against ICE as it morphed into an aggressive, often rogue agency following President Trump’s continuous agitation against the (imaginary) threat of a never-ending flow of criminals across the Mexican border. DHS began gathering mountains of open source information linked to potential threats (no matter how spurious, sarcastic, or stupid) to ICE and its personnel. Its workload quadrupled but its personnel did not.

That bottleneck led to the increased demands of collections in Portland being handled with nearly no direct or indirect oversight. In addition, certain DHS officials (mainly acting DHS Under Secretary Brian Murphy) pushed personnel to do questionable things, like build dossiers on peaceful protesters and link as much protest-adjacent criminal activity to Trump’s preferred villain, utilizing the term “Violent Antifa Anarchists Inspired” (VAAI), replacing the far more neutral designation, “violent opportunists.” This last move was directly mandated by Acting Secretary Brian Murphy.

The DHS arrived in Portland under-equipped and without much specific guidance outside of shutting down protests as quickly as possible. That resulted in things one might expect from a small town police department responding to an unexpected crisis rather than a federal agency that has received hundreds of billions in funding every year for the past two decades.

Adding further aggravation to an already incredibly strained system, OSCO [Office of the Chief Security Officer] was required to surge to respond to crisis events that arose as a result of the George Floyd killing. New hires, who had barely received any form of training, were immediately activated to assist in any capacity possible. A scrambled purchase for laptops was made through acquisitions from Best Buy, and on a Saturday evening, the new hires were asked to meet in the DHS Nebraska Avenue Complex (NAC) parking lot so they could pick up a “collection” laptop. The OSCO branch chief, via Microsoft Teams Chat, then walked them through downloading the necessary software and visiting social media sites to collect information.

Hundred of billions in funding and this is what people who actually cared about doing the job right ran into:

One collector attended an OSINT conference using her own funds to buy her ticket. At the conference there were tabletop exercises and competitions. The collector opined that “many of the [OSCO] collectors, even the senior ones, were clueless about the rest of the field or social media.”

Here’s how that played out in Portland:

A major deficiency in the deployment of OSCO personnel to Portland was the deployment of inexperienced, inadequately trained junior collectors without any sort of pre-deployment training offered to help address their underdeveloped understanding of true threats, First Amendment protections, collection requirements, and national intelligence and DHS departmental mission sets. Instead, the Portland team only received a quick counterintelligence briefing and a gas mask with rudimentary instruction just a few hours before they deployed. The Portland team received only a 24-hour notice that they would deploy. […] Regarding his training, this collector stated, “aside from the cookbook and a couple of emails about the threats to look for, I was not given guidance about what to collect before I began collecting.”

If you don’t train adequately, or if you simply don’t care what happens to people you think are “anti-police” (an attitude apparently encouraged by Under Secretary Murphy), you end up with more rights violations than actionable intelligence.

Another example indicative of poor training was identification of sources. Many junior collectors would find a new source and use the information without properly considering the source’s historical activities, such as past comments made, other violent or crime-related interests, links to nefarious groups, previous violent actions or incitements to violence. Instead, it was a “one and done” type of review – if the source made one threatening statement like “kill cops,” that statement sufficed for a report without regard to that subject’s “prior anti-law enforcement sentiment” or propensity to intentionally incite violence or commit a violent act.

I mean, it would be comical if it weren’t for all the tax dollars and steamrolling of civil liberties. There are several ways you can make intelligence gathering less likely to obtain usable intelligence and one of those ways is to reward people for turning in whatever they turn up, no matter how useless the “intelligence” is.

Every report became a priority since all materials that OSCO collectors were reviewing and collecting were supposed to be threat-based. This pressure translated to a high operations tempo to ensure that these perceived threats were timely reported. The pressure was put not only on the collectors, but also on the SDOs [Suspension and Disbarment Officials] to speed up their reviews and publish OSIRs [Open Source Intelligence Report]. This, coupled with the fact that the OSCO collectors were primarily graded on the average number of OSIRs they produced a month, pushed limited review of the threats they collected.

Civil liberties on the line and an under-trained, under-manned deployment turned the DHS’s intelligence wing into Civil Rights Violation Central. Peep this level of professionalism:

A former content manager stated that collectors were like a “bunch of 6th graders chasing a soccer ball – everyone wanted to be the collector who found the golden egg or found the threat.”

It was “Office Space,” but with tax dollars and rights at stake.

The CETC [Current and Emerging Threats Center] Director was the “king of the drive-by direction,” dropping by someone’s desk and asking them to do something without putting it in writing.

The end goal: plausible deniability for someone paid to take responsibility for their own actions as well as those of the people they oversee.

[T]he Director would often say that he did not direct that task and ask, “where’s the e-mail” that told them to take that action, or that they had misinterpreted his instructions.

Things were already going badly. DHS officials continued to make things worse.

At best, this practice translated to wasted effort on unclear direction that changed through shift pass downs; at worst, it was construed as an attempt by leadership to have deniability for any inappropriate, accidental or intentional activities. This practice caused distrust and confusion among employees regarding task assignment and appropriateness.

On top of this disaster was Acting Under Secretary Brian Murphy, who was openly hostile towards any form of accountability or oversight.

“He told the mission managers they did not have to go through G4 (visa approval) review, and that the G4 was there as a resource, but not a necessary step, so it was the fault of the mission managers if the review process takes time.” When ILD [Intelligence Law Division] attorneys would attend I&A meetings with Mr. Murphy and the mission center directors, Mr. Murphy would limit the attorneys’ ability to provide legal guidance, making statements such as “I did not ask for your opinion.”

Murphy pushed for more collections, less oversight, and unilaterally decided to unmask US persons caught in the DHS’s new dragnet, despite acknowledging he was bound by limitations handed down by the Office of the Director of National Intelligence (ODNI).

And those violations expanded in Portland, where the contradiction with the I&A report appears, headed by Under Secretary Brian Murphy’s insistence that dossiers on protesters shouldn’t be limited to people suspected of coordinating violent attacks on cops, DHS officers, or government buildings. Instead, Murphy ordered the compilation of “Baseball Cards” (the intelligence community slang term for “Operational Background Reports” [OBRs]) on anyone involved or near an attack on law enforcement officers.

Fortunately, most of those involved in the Portland operation weren’t on board with Murphy’s willingness to violate rights to pursue Antifa-related conspiracy theories.

Initial drafts of OBRs completed by OSCO personnel included friends and followers of the subjects, as well as their interests. Just the collection of names of USPERs found on social media profiles could be a violation of those individuals’ privacy rights under the IO guidelines if the appropriate reasonable belief standard and mission need are not satisfied. Fortunately, early drafts of OBRs removed this information and replaced it with “friends list available upon request.” However, the subject’s interests and some of their First Amendment speech activity (posts) were still collected.

Some CETC staff refused to continue to compile these dossiers. They were informed by CETC management that no justification for violating rights was needed. In essence, they were ordered to follow orders. Some still refused. Others took their concerns to DHS attorneys. The Intelligence Law Division raised these concerns with Murphy but were ignored. The legal division also questioned the unilateral decision to declare OBR subjects Antifa-related. These questions were also ignored. Surveillance of US persons engaged in First Amendment protected activities continued.

There’s plenty of anecdotal evidence and sworn statements to DHS oversight that Murphy encouraged unfettered surveillance of Portland residents. Unfortunately, there’s not much physical evidence. Plenty of personnel resisted Murphy’s orders. Some even tried to undercut his efforts by demonstrating the futility and abusiveness of his surveillance orders, working with other DHS components to show there was no demonstrable link between subjects of OBRs. But the true number of unconstitutional dossiers remains a mystery because the DHS deleted it.

The total number of OBRs created could not be assessed. Witnesses were unsure of the total number of OBRs created. Some stated that only 20 were produced, others stated they’d only seen 20-25, and still others claimed there were about 50-100 created. Our team was provided with a total of 43 though it is apparent that there are more OBRs than what was provided. Not all the OBRs could be recovered, as they were deleted from the share drive used to create and edit them.

The Acting Under Secretary ran a garbage mission. And he ran it off the rails. He ran it so poorly and with such immediately apparent antipathy towards the targets of Trump’s rage, DHS employees did everything they could to shut down his overreach and ignore his mandates.

In one case, CETC prepared an OBR on an USPER whose social media profile clearly identified the individual as a journalist. This individual was arrested for flying a drone in a national defense airspace. The arrestee’s purpose for flying this drone was not identified in the OBR – it may have been for the purpose of capturing photographs of the ongoing activities or for some other reason – and as such it is unclear whether this OBR was a valid exercise of I&A’s legal authority. In another instance, an I&A employee requested a report on another journalist – the same journalist at issue in one of the leaked OSIRs – and included instructions to add “a list of any [of his] associates or groups.” The journalist in that case had not been arrested for anything, but had posted unclassified DHS internal correspondence to his social media page. In addition to poor optics, completing an OBR on this journalist without a clear connection to a national or departmental mission arguably would have failed to satisfy the reasonable belief standard. Fortunately, a collector recognized that the subject was a journalist, alerted the requestor to this fact, and declined to proceed with that particular search.

The report is a disheartening, brutal, detailed indictment of the DHS and its actions under Trump and his appointed leaders. And I encourage you to read it in its entirety. I realize this post is now comparable to so many classics of American literature (not in terms of writing quality but because it is exceedingly long) but hopefully it conveys just how easily White House rhetoric can turn government agencies into en masse rights violators. We may be the Land of the Free, but a lot of that freedom requires the government to respect the limits it has imposed on itself. That just isn’t happening.

Filed Under: 1st amendment, antifa, civil liberties, dhs, portland, protests, ron wyden, social media, surveillance

Survey Says Portland Cops Should Be Locked Out Of Recordings Until After They’ve Written Reports, Answered Investigators

from the it's-time-to-make-cops-cameras-work-for-the-people dept

The Department of Justice has been keeping an eye on the Portland (OR) Police Bureau (PPB) for nearly a decade now, finding that officers routinely engage in excessive force, especially when dealing with residents suffering from mental illness. A consent decree was put in place in 2014. Since then, the Portland PD has violated the agreement regularly.

In early 2021, the DOJ (again) approached the city and its Police Bureau, demanding more reforms to bring it in compliance with the agreement the PD had signed seven years earlier.

In February, the Justice Department found the Police Bureau failed to meet four key reforms under the settlement, citing inappropriate police use and management of force during protests last year, inadequate training, subpar police oversight and a failure to adequately share an annual Police Bureau report with the public as required.

More pressure was applied later that year, when the DOJ strongly suggested the PPB begin outfitting its officers with body-worn cameras.

U.S. Justice Department lawyers on Monday sent a letter to Portland’s city attorney and police chief recommending all uniformed patrol officers, sergeants and any officers regardless of rank who are part of tactical, traffic or crowd-control operations should wear body cameras.

The letter came as the city remains in negotiations with the police union over the parameters of equipping officers with body cameras — one of the steps the city can take to return to compliance with its 2014 settlement with the federal government over police use of excessive force.

Somehow, the police force patrolling one of the most “progressive” cities in the country was still using outdated tech to collect footage of police interactions, limited almost solely to whatever could be captured by dash cams. The DOJ also suggested the cameras be activated any time officers engaged with a member of a public, but especially in cases where guns or Tasers were drawn or car chases initiated.

Somehow, the Portland PD has still failed to start equipping its officers with body cameras. This will be changing, but apparently on the PPB’s timeline, rather than the DOJ’s. 173 officers will be part of the test run that will test camera functionality. Eventually, this will expand to 636 officers. Currently, the city employees about ~800 sworn officers.

The PPB and the public differ on how body camera footage should be handled. The PB believes it should set the rules on access to footage. Or, at least, its union feels this way.

Sgt. Aaron Schmautz, president of the Portland Police Association, argued that allowing officers to view the camera footage beforehand would allow them to consider all the evidence and write the most accurate and thorough report of what occurred.

Schmautz said most agencies of “any substantial size” in Oregon, including Oregon State Police, the Clackamas and Washington county sheriff’s offices, Eugene, Beaverton, Gresham, Hillsboro, Medford and Bend police departments, allow officers to review their camera video before writing reports.

The DOJ disagrees.

The Justice Department has recommended to the city that when a Portland police officer uses force, the officer shouldn’t review any of the recordings before first reporting and then completing all reports or interviews associated with the incident.

Officers who use deadly force or are involved in a death in custody case also shouldn’t view any of the footage until they give an interview to an investigator and only after they get permission from the local prosecutor, the federal lawyers suggested. Local prosecutors may not, for example, want an officer to view the footage before testifying before a grand jury.

The DOJ’s position may be an outlier, but it’s not as though it’s nonexistent. The DOJ noted this was the policy in place in major cities like Baltimore, Maryland and Atlanta, Georgia.

A majority of Portland residents agree with the DOJ: cops should be locked out of body cam footage in certain cases.

More than half, or 52 percent, of 2,110 community members surveyed in Portland this year said police should not be allowed to view body camera footage that captures an officer’s use of force before writing reports or being interviewed.

And 46 percent of those surveyed said videos of police use of deadly force should be made public immediately after prosecutors determine that releasing the footage won’t jeopardize a criminal investigation.

A survey [PDF] conducted by the city with the assistance of consultants Rosenbaum & Associates queried the public on the DOJ’s body cam recommendations, as well as those crafted by the city’s civilian oversight board, the Portland Committee on Community-Engaged Policing (PCCEP). Here’s the PCCEP’s recommendations:

PPB should be transparent in how officers for the pilot project are selected. Officers for the pilot
project should be randomly selected. This will alleviate the perception that officers are
handpicked for the project based on behavior and other positive factors that could influence
results.

PPB should be transparent in how officers for the pilot project are selected. Officers for the pilot project should be randomly selected. This will alleviate the perception that officers are handpicked for the project based on behavior and other positive factors that could influence results.

We strongly recommend body camera footage be stored by an independent third party.

Officers should write their police reports before viewing body camera footage. This would avoid officers tailoring their accounts of the incident based on what the footage shows.

Strict discipline for officers who turn off their cameras when they are supposed to be engaged. This should include the possibility of termination.

Public access to the video should be accessible to all individuals in regard to disabilities, etc including ADA accessible.

These recommendations make sense. That’s why the PPB rank-and-file — as fronted by their police union — is against them. The public definitely wants more accountability. The 52% wanting cops to be locked out of footage until after reports are written and interviews completed may seem like a slim majority, but factor in the 13.5% that had no opinion and only 34% of city residents think cops should be able to craft narratives that fit the recordings when writing reports or answering questions.

Other results from the survey show an overwhelming majority of those surveyed want more accountability from police officers.

– Seventy percent said the city auditor’s office should be able to view the body camera recordings to evaluate the Police Bureau’s performance.

– Ninety percent said the Police Bureau’s training division should be allowed to view body camera recordings to help develop or alter officer training.

– Eighty-five percent said an officer’s supervisor should be allowed to randomly review body camera recordings to see if an officer is doing their job appropriately.

I’m sure the PPB knows the public wants more accountability from officers. But it’s probably going to side with what its officers want, which is more of the opacity that has encouraged a culture of violence and misconduct. But the DOJ agreement complicates matters, and that means the PPB will at least have to try to meet the public halfway, which should hopefully make the city’s cops better by making the worst of the rank-and-file feel the heat.

Filed Under: body cameras, doj, investigations, portland, portland police, ppb

Sheriff's Office Asks Court To Prevent A Different Gov't Agency From Releasing Records Related To The US Marshals' Killing Of An Antifa Activist

from the is-this-a-'tell?'-it-feels-like-a-'tell' dept

A controversial shooting that resulted in another controversial shooting is generating even more controversy.

Earlier this year, self-proclaimed antifa supporter Michael Reinoehl allegedly shot and killed far right counter-protester Aaron Danielson during a protest in Portland, Oregon. Reinoehl claimed the shooting was self-defense. Other witnesses claimed the shooting was unjustified. Neither assertion ever had a chance to be proven. Reinoehl was killed by US Marshals four days later — an extrajudicial killing praised by President Trump as good and lawful.

“We sent in the U.S. Marshals for the killer, the man who killed the young man on the street. He shot him… just cold blooded killed him,” Trump said. “Two and a half days went by, and I put out ‘when are you going to go get him?’ And the U.S. Marshals went in to get him, and they ended up in a gunfight.”

Trump called Reinoehl a “violent criminal” before suggesting that his extrajudicial killing was par for the course.

“This guy was a violent criminal, and the U.S. Marshals killed him,” Trump said. “And I will tell you something — that’s the way it has to be. There has to be retribution when you have crime like this.”

The Thurston County Sheriff’s Department was part of the Marshals’ fugitive task force. According to the department’s statements, the kill was a good one. Officers and Marshals claimed Reinoehl opened fire on the task force first. But there was no evidence of that at the time the department made these statements. A witness said Reinoehl fired first, but here’s all the Sheriff had in terms of actual evidence:

Lt. Ray Brady of the Thurston County Sheriff’s Department said investigators have not concluded whether Reinoehl fired any shots.

There could have been more corroboration of the officers’ statements, but no officer felt compelled to document the scene.

Brady said he did not believe the officers involved in the shooting had body cameras or dashboard cameras on their vehicles.

Investigations of the shooting are ongoing. But the immediate aftermath featured both the Sheriff’s Department and the US Marshals Service declaring the shoot justified.

CJ Ciaramella of Reason isn’t satisfied with the official statements. He went looking for documents about the shooting — one that might clear up whether or not Reinoehl produced a gun or opened fire on officers. Contradictory statements by non-law enforcement witnesses indicate this may not be as clean as law enforcement is portraying it.

But Ciaramella’s request for records from the Washington Department of Corrections (which also had an officer on the Marshals’ task force) is being blocked by an agency Ciaramella hasn’t approached directly. Inserting itself into this open records request is the Thurston County Sheriff, which believes it has a right to prevent Ciaramella from obtaining records from a completely separate government agency.

The Sheriff’s request [PDF] for a restraining order blocking the release of shooting records claims the release of these records will undercut its own investigation by [checks filing] giving the public access to information the Sheriff may later demand from the Department of Corrections.

The likelihood is high that the records DOC intends to release contain facts or statements that may be relevant to the Sheriff’s open investigation, and that could in turn undermine the Sheriff’s investigation. Release of these records could also undermine the exemption that the Sheriff properly claimed. Additionally, the likelihood is high that the records DOC holds may, even if redacted, contain information that the Sheriff’s investigation team is prohibited from seeing until its own investigation is complete; and the likelihood is high that such information could make its way back to the Sheriff’s investigation team if DOC releases its records before the Sheriff completes its investigation. Therefore, Thurston County Sheriff’s Office brings this action to preserve the integrity of its investigation and of its claimed exemption under RCW 42.56.240(1), as well as to ensure its efforts to meet its obligations under WAC 139-12-030 are not thwarted.

A cynical reading of this attempted intervention suggests the information held by the DOC isn’t completely exculpatory and — if that information becomes public — will make it difficult for the Thurston County Sheriff to clear the officers it’s investigating. That may also turn out to be the most accurate reading. But we’ll have to wait a bit longer. The restraining order has been granted [PDF]… but not with all of the Sheriff’s assertions intact.

Here’s the pertinent part of the order, with the judge’s modifications of the Sheriff’s request in [brackets].

A temporary restraining order is appropriate as it appears that disclosure of certain information requested by CJ Ciaramella concerning records related to an open and active homicide investigation led by Thurston County Sheriff’s Office (the Reinoehl incident) is [may be] exempt from disclosure under RCW 42.56.240(1), the non-disclosure of such records is [likely] essential to effective law enforcement, and disclosure would [likely] irreparably harm vital government functions…

This buys the Thurston County Sheriff a bit more time. The order is in effect until early next year, when the Sheriff will have to try to talk the court into delaying this release even longer. That it’s decided to insert itself into this case suggests it already has some idea it’s not going to like what’s in the documents it’s trying to keep from being released. This “clean” shoot may turn out to be anything but.

Filed Under: aaron danielson, antifa, foia, michael reinoehl, police, portland, thurston county, thurston county sheriff's department, transparency, us marshals, washington department of coorections

Federal Court Says Sanctions Are On The Way For Portland PD Over Violations Of Protest Restraining Orders

from the rule-of-law-is-cool-until-it-applies-to-you,-I-guess dept

Police forces — both local and federal — greeted Portland protests with violence. To be sure, there were some violent protests. But officers of both varieties felt they should be able to target journalists and legal observers with the same force they were deploying against rioters.

Once the feds rolled into town, things got worse. This was met with litigation, with journalists and observers asking the court to make the cops play by the normal rules of engagement. If journalists and observers weren’t committing any crimes, they should be free to report and observe without fear of being beaten, shot at, or gassed.

The court agreed. So did the court above it, albeit belatedly. Injunctions were granted, prohibiting the use of force against the plaintiffs. These injunctions were immediately violated, resulting in more litigation.

It wasn’t just the feds, although the feds were the most immediately noticeable violators of this court-ordered relief. The local police were having problems keeping themselves from greeting non-violent protesters with violence. A federal judge has just ruled that the Portland Police Department (PPD) violated his instructions and his restraining order on multiple occasions. (via Courthouse News Service)

Back in June. Judge Marco Hernandez banned the use of tear gas by cops except in life threatening situations. Another modification to his order banned the use of rubber bullets and pepper balls against “people engaged in passive resistance.” According to Hernadez’s latest ruling [PDF], the Portland Police have continued to violate his orders.

The court cites several instances detailed by protesters. In at least three cases, PPD officers violated the court’s instructions on force deployment during a protest on June 30 — less than a month after Hernandez issued his first order.

As described above, FN303s and 40mm less-lethal launchers must be used “as outlined in PPB Use of Force Directive 1010” and “shall not be used where people engaged in passive resistance are likely to be subjected to the use of force.” FN303s and 40mm less-lethal launchers are impact munitions governed by ¶ 6.4.2 of Use of Force Directive…

The Court finds that three of the eight incidents involving the use of impact munitions violated the Order. These three incidents include: (1) two deployments of fifteen rounds from an FN303 against individuals carrying a banner (Incidents 2 and 3) and (2) the deployment of a few rounds from an FN303 against an individual picking up an unknown object between the protest line and the police line (Incident 9). The remaining incidents did not violate the Order.

In one instance, the PPD tried to justify its excessive force by claiming a banner held by retreating protesters could have injured officers.

Officer Taylor testified that he deployed his FN303 against an individual holding onto a banner because he believed the banner would later be used as a weapon. Specifically, he cited the following circumstances in support of his belief that the banner may be dangerous: (1) the atmosphere of the protest that day; (2) the movement of protestors behind the sign as though it was a shield; (3) the slow pace of the protestors holding the banner, causing interference with the police formation; (4) the protestor’s refusal to let go of the banner; and (5) the use of PVC pipe as the banner’s frame, which he testified can be reinforced with cement or nails.

We’re going to need a lot more than pure speculation, says the court.

But none of the circumstances cited by Officer Taylor suggested that this banner was a weapon or would be imminently used by protestors as a weapon.

And it’s not like the protesters were operating under the cover of darkness to manufacture a PVC-and-cloth weapon of mass police destruction.

Police officers had ample opportunity to observe the banner before Officer Taylor deployed his munitions. The incident occurred while it was still light out, and video shows that the long PVC banner was flimsy.

Unjustified. And a violation of the judge’s order.

And—most importantly—nothing suggested that the individual Officer Taylor targeted was engaged in “[a] threat or overt act of an assault, . . . which reasonably indicate[d] that an assault or injury to any person was about to happen, unless intervention occur[ed].” Use of Force Directive 1010 (Definitions). At most, the record shows that the individual who was refusing to let go of their sign was engaged in passive resistance.

While the PPD has mostly complied with the orders, it has not always complied with all the orders. Being mostly compliant simply isn’t good enough. The court says sanctions are incoming.

Defendant has failed to demonstrate that it took all reasonable steps to comply with the Order. The Court acknowledges that Defendant took some steps to ensure compliance on June 30. Captain Passadore, for example, read the requirements of the Order over the radio after calling for attention from all officers involved in crowd control on the evening of June 30. There is also evidence in the record that Captain Passadore directed all supervisors to ensure that all officers were informed of the requirements of the Order. And the Court is cognizant that PPB has been stretched thin over the past few months with the same RRT officers working endless hours in response to ongoing protests. It is also aware of the effect the pandemic has had on PPD’s ability to conduct additional trainings. Nevertheless, the Court cannot conclude that a single radio transmission and a discussion with RRT officers and supervisors on June 30, 2020, constitutes “all reasonable steps” Defendant could have taken to ensure compliance with the Order that evening. Accordingly, the Court finds Defendant City of Portland in contempt.

Unfortunately, if this comes down to fines, the City of Portland will just dig into its bag of “Other People’s Money” and pay them. But it could result in further restrictions, which isn’t going to work out well for an agency that’s already demonstrated it can’t follow printed instructions.

Filed Under: 1st amendment, free speech, journalists, police, portland, portland pd, protestors, use of force

Portland, Maine Passes Facial Recognition Ban That Says The City Can Fire Employees For Violating It

from the we'll-see-if-the-city's-union-is-more-powerful-than-the-city,-I-guess dept

Another facial recognition ban has been passed, bringing a bit more enforceable privacy to the eastern side of the nation. Most of the ban action to date has been on the West Coast, with small pockets of resistance popping up elsewhere. Well, mainly just Massachusetts. The latest ban passed during the most recent election, gives Portland, Maine residents the freedom to live their lives with a little less panopticon.

In Maine, voters in the state’s largest city recently enacted one of the toughest facial recognition bans in the country in the Nov. 3 elections, outlawing both use of the technology by local police and the city government.

The ban that passed during this referendum is an improvement over the original proposal. This version makes it enforceable. There are consequences for violating that go beyond the expected fines and fees that just shift tax dollars from one government agency to another.

The new law allows citizens to sue the city for illegal facial recognition surveillance by the city police or government. Citizens could get up to $1,000 per violation plus legal fees, if they prevail in court. Municipal employees can be fired for violating the ban.

Of course, these fines and fees just refund some tax dollars to taxpayers. But this is better than allowing the city to collect the fines, which isn’t much of a deterrent to government agencies which can expect to see some of their paid fines dumped back into their pockets with the next budget approval.

The firing threat may be even more effective than giving taxpayers some of their taxes back. When a job’s on the line, government employees are far less likely to abuse their power.

This ban was originally passed by the city council three months ahead of the election. But that ban did not include the possible firing of violators. It was the city’s residents who insisted on this additional accountability measure. The ban goes into effect next year and cannot be removed for the next five years. That’s five years of surveillance creep mitigation. The people have spoken. And what they’re saying more and more frequently is they don’t want their lives and bodies to be little more than data points for law enforcement surveillance programs.

Filed Under: facial recognition, maine, portland, privacy, surveillance

Portland's Facial Recognition Ban Won't Stop Private Citizens From Rolling Their Own Tech To ID Cops

from the how-the-turntables dept

Portland, Oregon recently passed a ban on facial recognition tech. Unlike bans passed elsewhere in the country, this one wasn’t fucking around. The ban covered private companies as well as local government agencies. We’ve yet to see whether or not the courts will allow Portland to tell local businesses how to run their business, but the new ban has posed a novel problem not seen elsewhere. Residents trying to flip the script on law enforcement have discovered the new ban might impede their efforts. Kashmir Hill has the details on the unlikeliest outcome of blanket facial recognition bans.

When the city debated the ban, it asked residents for input. One resident had a very unique problem with the proposal.

During the time for public comments, a local man, Christopher Howell, said he had concerns about a blanket ban. He gave a surprising reason.

“I am involved with developing facial recognition to in fact use on Portland police officers, since they are not identifying themselves to the public,” Mr. Howell said. Over the summer, with the city seized by demonstrations against police violence, leaders of the department had told uniformed officers that they could tape over their name. Mr. Howell wanted to know: Would his use of facial recognition technology become illegal?

When cops resfuse to ID themselves while assaulting journalists and legal observers, why shouldn’t citizens be able to deploy this controversial tech to put a name to the faces wielding the pepper spray and rubber bullets? It’s a good question. And it’s one Portland mayor Ted Wheeler answered after throwing a bit of undeserved shade at Christopher Howell:

Portland’s mayor, Ted Wheeler, told Mr. Howell that his project was “a little creepy,” but a lawyer for the city clarified that the bills would not apply to individuals.

Presumably, Wheeler’s passage of the blanket ban means the mayor also thinks law enforcement’s use of the tech is at least “a little creepy.” But there’s really nothing creepy about residents — those on the lower end of the “inherent power” scale — utilizing tech most often wielded by law enforcement against law enforcement. If officers think facial recognition use by civilians is a “little creepy,” they’re severely lacking in self-awareness. And if Portland cops don’t want residents to turn their favorite tool against them, they could stop taping over their names when handling protests.

Howell’s tech is self-developed. That puts him a bit behind the curve. But it also means it will work well within its limitations. Rather than search for faces in databases containing millions of photos, it only has to deal with photos of known local law enforcement officers. The possibility of false positives remains. But the worst case scenario is a misidentified officer, rather than the arrest of an innocent citizen. Howell has no power to take away the freedom of any police officer, even temporarily.

For all their touting of pervasive surveillance as “harmless” and “for the public good,” governments sure get touchy when people start subjecting their employees to the same sort of eyeballing. Hill’s report notes Hong Kong authorities arrested a protester for developing a tool to identify police officers using nothing more than other publicly-available photos. And in France, an artist who published 4,000 facial photos of police officers in his art exhibit removed them after being threatened with legal action by the Interior Minister.

Meanwhile, the Portland Police Department continues to defend its policy of hiding officers’ names, under the theory that it’s the powerless populace that presents the biggest threat to safety.

Derek Carmon, a public information officer at the Portland Police Bureau, said that “name tags were changed to personnel numbers during protests to help eliminate the doxxing of officers,” but that officers are required to wear name tags for “non-protest-related duties.”

Officers “dox” people all the time. Sometimes for “business” reasons. Other times for personal reasons. The government has a lot more personal information at its fingertips than the average citizen does, even four decades after the birth of the internet. There’s an existential threat present here, but it wears badges and guns. For all the talk about the threat posed to cops, I’m unaware of any instance where a doxxed cop was awoken by citizens breaking in their door, loading the house up with flashbangs, holding them at gunpoint while the house is ransacked, and locking them up until a certain amount of money is paid to a third party. Spinning the tech to face the entities that deploy it most is just fair play.

Filed Under: cops, facial recognition, portland, protestors

Appeals Court Reinstates Injunction Blocking Federal Agents From Assaulting Portland Journalists

from the Constitution-still-applies,-even-in-'democrat'-cities dept

The city of Portland, Oregon is still in the midst of anti-police brutality protests stemming from the killing of Minneapolis resident George Floyd by police officer Derek Chauvin. Federal officers arrived in Portland in July, making their presence known by engaging some extremely questionable tactics.

Their arrival was met with their addition to an ongoing lawsuit against law enforcement seeking an injunction banning cops of all types from assaulting or dispersing journalists and legal observers. The plaintiffs secured an injunction. They also secured an agreement from local police to stop treating those reporting and observing protests as protesters, exempting them from dispersal orders and forbidding them from being targeted with crowd control measures, such as tear gas and rubber bullets.

The federal interlopers gave zero fucks. They were added to the injunction but immediately violated it. The feds’ excuse? Sometimes protesters and rioters disguised themselves as press to avoid being dispersed and/or assaulted. The district court pointed out the local police had made no such accusations and appeared capable of controlling crowds without violating their agreement.

The federal agencies appealed. In August, the Ninth Circuit Court of Appeals stayed the injunction. A short opinion stated the federal government had shown evidence it would suffer “irreparable harm” if officers weren’t allowed to assault members of the press and other non-protesters. The emergency stay of the district court’s injunction was granted.

The Appeals Court has now fully addressed the government’s arguments and reversed its stance. The federal defendants are no longer exempt from the injunction forbidding them from assaulting journalists.

The government made three arguments in favor of assaulting journalists and observers. First, it argued journalists would not be deprived of Constitutional rights if assaulted or otherwise removed from areas where protests are taking place. It also argued that observing or recording protests (as observers or journalists) was not protected by the First Amendment — not when dispersal orders have been given. Finally, it argued federal officers were not targeting journalists and observers for being journalists and observers, so any OC spray/bullets headed in their direction were just part of solid, proven crowd control efforts. This last argument was made despite recordings being submitted to the court that showed federal officers appearing to deliberately target journalists with pepper spray and other forms of force.

The Appeals Court [PDF] says a lot of what the government is asserting simply isn’t true. There’s ample evidence showing federal officers deliberately targeted journalists and observers.

The district court’s preliminary injunction included twelve pages solely dedicated to factual findings that describe in detail dozens of instances in which the Federal Defendants beat plaintiffs with batons, shot them with impact munitions, and pepper sprayed them. The court’s findings were supported by nineteen declarations and video and photographic evidence. The Federal Defendants do not argue that any of the district court’s findings are clearly erroneous, and we conclude the findings are amply supported.

As of the time the preliminary injunction was entered, the district court found that the Federal Defendants had engaged in a pattern of conduct that had persisted for weeks and was ongoing. After reviewing plaintiffs’ declarations, photos, and video clips, the district court found that many victims had been standing on public streets, sidewalks, and parks, well away from protestors, and were not engaged in unlawful activity when they were shot, tear gassed, shoved, or pepper sprayed by the Federal Defendants. Unlike Lyons, the district court found that some journalists and legal observers monitoring the protests had been injured by the Federal Defendants more than once.

The plaintiffs’ arguments clearly aren’t speculative. Actual harm has been shown. And, given the fact federal officers did this repeatedly despite the district court’s injunction, there’s every reason to believe they will continue to do so.

The court also points out the government’s claims that its officers’ actions against journalists were not retaliatory is clearly bullshit. The Appeals Court says federal officers engaged in retaliatory actions repeatedly. Referring to evidence submitted to the district court, the Appeals Court highlights four acts of retaliation by federal officers.

On July 29, plaintiff Brian Conley was wearing a photographer’s vest marked “PRESS,” a helmet marked “PRESS,” and was carrying a large camera with an attached LED light and telephoto lens. After reviewing video footage submitted by plaintiffs, the district court found that Conley was filming a line of federal officers moving down the street pepper spraying peaceful protesters—including spraying a woman in the face at point blank range who was on her knees in the middle of the street with her hands up—when, without warning, a federal officer pepper sprayed Conley at point blank range.

On the night of July 19, Jungho Kim, a photojournalist, was wearing a neon yellow vest marked “PRESS” and a white helmet marked “PRESS” on the front and rear. The district court found that Kim was standing alone, about 30 feet from federal agents, taking photographs, when suddenly and without warning, Kim was shot in the chest, just below his heart with a less-lethal munition. A photograph submitted with Kim’s declaration shows that he was shot where the word “PRESS” was printed on his vest.

On the night of July 26, Daniel Hollis, a videographer, was wearing a press pass and a helmet marked “PRESS” in bright orange tape, and carrying a large, professional video-recording camera. Hollis was filming a group of federal agents massed outside the federal courthouse. “Almost immediately,” the federal agents shot at him, striking him just left of his groin. He turned and began to run away, but was shot again in the lower back.

On July 27, Amy Katz, a photojournalist, was wearing a hat and tank top marked “PRESS” and carrying a camera with a telephoto lens while covering the protests. Katz was photographing a federal agent who pushed a man down a flight of stairs while arresting him. Another federal agent physically blocked Katz and tried to stop her from photographing the arrest. Katz stepped to the side to continue photographing the arrest, and the federal agent physically shoved her away.

That’s only four incidents. The district court listed at least forty-five similar instances — all of which occurred after the government had been hit with an injunction banning it from engaging in this behavior. The lower court also stated it was “clear” there were more instances that weren’t detailed in its decision.

The Appeals Court says the press has the same right to access the general public does. It can record officers’ actions from public streets and sidewalks. The press certainly does not have less access than protesters, which was the government’s argument. The Appeals Court says dispersing the press from these areas is not essential to protecting the government’s interests.

And the government’s interests — as far as Portland goes — are very limited. The government gives the court no reason why its task of defending federal property requires it to remove press and observers from public areas away from this property or deliberately target press with crowd control weapons.

Finally, the Appeals Court again notes local law enforcement had no problem abiding by the restraining order, even though its jurisdiction covered far more than federal buildings. Every argument the government raised in defense of it assaulting journalists is undercut by the agreement struck between press members and the Portland Police. The feds should have no problem abiding by the injunction, the Appeals Court says.

By its terms, the preliminary injunction the district court entered against the Federal Defendants addresses each of the reasons the Federal Defendants advanced to argue that it was impossible to tailor their dispersal orders. As to the contention that journalists or legal observers might interfere with federal law enforcement if not required to disperse, the preliminary injunction expressly prohibits journalists and legal observers from impeding, blocking, or otherwise interferingwith the lawful conduct of the Federal Defendants. The preliminary injunction leaves the Federal Defendants free to make arrests if there is probable cause to believe a crime has been committed, even if the perpetrator is dressed as a journalist or legal observer. The preliminary injunction also provides that the Federal Defendants will not be liable for violating the injunction if journalists or legal observers remain in the area after a dispersal order is issued, and are incidentally exposed to crowd-control devices. Finally, though the Federal Defendants argued that large and unique identifying markings on their uniforms could inhibit their ability to carry out their duties, the district court concluded they did not support this claim.

The stay is lifted. The injunction secured three months ago is back in effect. If recent history is any indication of future performance, it will soon be violated by federal agents still in Portland. But if they do violate it deliberately, they won’t be given the benefit of a doubt. Qualified immunity will not apply.

Filed Under: 1st amendment, dhs, journalism, portland, protests

FBI Sent A Special Task Force To Portland To 'Exploit' Phones Taken From Protesters

from the collect-it-all dept

Ongoing protests in Portland have been met with a federal response. The opening salvo was disturbing: Gestapo-esque tactics carried out by unidentified federal officers driving unmarked vehicles. It didn’t get any better after that. The federal task force headed by the DHS seemed more willing to escalate the situation than settle things down, even if they were supposedly there to just do federal things like protect federal property and investigate federal crimes.

Documents leaked to Ken Klippenstein indicated the federal presence in Portland was more interested in finding evidence of some sort of Antifa hierarchy than sticking to the directive. FBI forensic analysts and their tech had been scrambled to Oregon to dig into phones taken from protesters and arrestees in hopes of finding some sort of organizational structure for them to attack.

This immediately raised questions about the Constitutionality of these device extractions. There’s a warrant requirement in place for phone searches incident to arrests and it’s not clear whether this requirement is being followed. For that matter, cloning phones belonging to detainees not necessarily suspected of criminal activity (with or without a warrant) seems like an unjustified abuse of the powers granted to law enforcement.

Emails obtained by the New York Times indicate that’s exactly what’s happening. A special deployment of FBI agents was sent to Portland specifically to aid in the extraction of information from protesters’ phones.

The FBI’s Washington, D.C., headquarters sent agents from its “Fly Team,” an elite counterterrorism unit, to Portland this summer during the second weekend in July. Their task was to interview arrested protesters and carry out the “initial exploitation of phones, or other communication devices,” according to FBI emails obtained through a public records request. It is unclear whether the Fly Team operation extended either past that weekend or beyond Portland, but the emails suggest that the FBI has been using counterterrorism tools and powers to map left-wing protest networks just months before an election whose result is likely to be delayed, if not challenged.

The Fly Teams have been in existence since shortly after the 9/11 attacks in 2001. But until now, they’ve mainly been foreign-focused — either operating in other countries or targeting foreign terrorists. This breaks some new ground in a disturbing way: counterterrorist activity targeting US citizens, some of which have engaged in nothing more than exercising their First Amendment rights.

The emails also suggest federal law enforcement is working around warrant requirements by exploiting one particular exception:

In one of the replies to [Special Agent] Chamberlin’s email, a colleague in the Portland bureau notes that the Fly Team’s “defintion [sic] of exigency will be different from ours.”

The emails [PDF] detail an incident that might be used to stretch the definition of “exigent” to cover any detained protester. A man arrested for shining laser lights into officers’ eyes was found to be carrying weapons and explosives. He consented to a search of his phone, which led to a search of his home and criminal charges. If agents can talk themselves into believing any arrestee or detainee poses a threat, phones are going to be searched without warrants in the hopes a court will grant the government the benefit of a doubt if the search is challenged.

There’s nothing in the emails that says the FBI is adhering to the Fourth Amendment. There’s nothing in there that says it isn’t, either. But you generally don’t memorialize Constitutional violations in communications that can be obtained with public records requests.

As the New York Times notes, it’s unclear under what authority the FBI is acting if it’s treating domestic protests like domestic terrorism. But the Constitution may not be much of an obstacle thanks to actions taken by President Ronald Reagan nearly four decades ago.

Among the special powers granted exclusively to the FBI under a Reagan-era executive order (No. 12333) are authorizations to conduct “unconsented physical searches” and “physical surveillance” for intelligence purposes in the US.

We’ll know more as more information leaks out or searches are challenged in court. But even if the FBI is following the law, the law gives it a lot of leeway to engage in acts it probably shouldn’t, even if it legally can.

Filed Under: 1st amendment, 4th amendment, antifa, dhs, exigent circumstances, fbi, phones, portland, protests, surveillance

DHS Probably Didn't Clone Phones To Intercept Protesters' Communications

from the more-fuckedupness-from-the-feds dept

More information continues to leak out about the federal government’s ad hoc anti-riot strike force (or whatever) that made its nationwide debut in Portland, Oregon. The federal officers — composed of DHS components, US Marshals Service, and Federal Protective Services — made an immediate impression on the nation as unmarked officers hauled protesters off in unmarked vehicles to undisclosed locations for questioning.

The feds immediately made things worse, resulting in a restraining order being sought after federal officers refused to stop attacking journalists, lawyers, and observers present at the protests. The DHS also began compiling “intelligence reports” on journalists covering the Portland protests, as well as other journalists who had published leaks about the federal response in Oregon.

Information obtained by Ken Klippenstein for The Nation shows the DHS and other federal agencies acting like they were headed to a war with foreign combatants, rather than limiting themselves to protecting federal buildings in Portland.

A current DHS official described a colleague with expertise in electronic surveillance who was being deployed to Portland. But for what purpose? “Extracting information from protester’s phones,” the DHS official said. While in Portland, an interagency task force involving DHS and the Justice Department used a sophisticated cell phone cloning attack—the details of which remain classified—to intercept protesters’ phone communications, according to two former intelligence officers familiar with the matter.

Cell phone cloning involves stealing a phone’s unique identifiers and copying them to another device in order to intercept the communications received by the original device. The former intelligence officials described it as part of a “Low Level Voice Intercept” operation, declining to go into further detail—one of them citing the sensitive nature of the surveillance tool and the other an ongoing leak investigation within I&A [Intelligence & Analysis].

If this is accurate, there are some obvious First and Fourth Amendment issues here. Targeting protesters engaged in protected speech is already wrong, but seeking to intercept their communications is something that requires a whole lot of probable cause. Wiretapping requirements are more stringent (or at least, they’re supposed to be) than they are for other types of searches because of the obvious subversion of privacy expectations.

Beyond that, engaging in sophisticated cloning attacks is not “Low Level Voice Intercept.” This term — at least when used by the US military — simply means scanning airwaves to find radio and mobile transmissions. Once located, they can be listened to. This generally refers to radio chatter, not the cloning of phones to eavesdrop on private communications between individuals.

This suggests the use of Stingray device to snag device identifiers and (possibly) engage in call interception. Stingray devices are capable of intercepting communications, but we’ve never seen one used that way domestically. It may not have happened here either, but it certainly would have helped identify devices and locate surveillance targets. The DHS has a warrant requirement for Stingray deployment, but there’s no mention of warrants in this article. Some exceptions apply, but the DHS would still need a pen register order and that would also require a judge’s okay.

That this was used domestically to possibly spy on people engaged in peaceful protests is concerning. That it was used to try to find evidence to back President Trump and AG Bill Barr’s ridiculous assertions that “anitfa” is an organized terrorist group is even worse. And if this is indeed what happened, it seems unlikely federal officers (which may have included “volunteers” from the DEA) had the probable cause necessary to snoop on private communications.

Even former spies are uncomfortable with the tactics used here.

The former intelligence officers agreed that the Low Level Voice Intercept operation had been conducted on the ground, was far more invasive than aerial surveillance, and involved equipment that I&A did not have access to.

“[There were] at least two federal agencies and there was some spooky shit going on,” one former intelligence officer said of the Portland operation.

It’s still unclear what the DHS actually did here. The article refers to the same actions as both “intercepting communications” and “extracting information.” Undoubtedly, there’s some “spooky shit” going on, but none of the former officials were present for whatever spookiness the DHS engaged in. The DHS has Stingrays and could have used them illegally. But it seems more likely it sent out an expert to help federal agents pull information from devices seized from protesters. The “cloning” discussed most likely refers to cloning the device’s contents, rather than the device itself. This is common when phones are seized by law enforcement. Again, a warrant is required but the cloning often occurs before the warrant is sought to ensure law enforcement has access to it.

Then there’s this, which suggests a DOJ component brought in a phone-cracking device (GrayKey, Cellebrite, etc.) to make it easier to extract device contents.

A current DHS official described how a colleague who was being deployed to Portland had alluded to using the Drug Enforcement Agency (DEA), part of the Justice Department, for the purposes of accessing protesters’ phones. “He said he needed some sort of ‘special key’ in order to …He said that DEA has that capability and vaguely alluded to possibly borrowing or using one from another agency once he got to Portland.”

If the DHS actually engaged in the interception of cellphone communications, it would be breaking new domestic surveillance ground. But it seems more likely it accessed a bunch of devices’ contents and made copies of the data. Until more information surfaces, it’s probably safe to assume federal agencies weren’t listening in on private communications.

Filed Under: 1st amendment, dhs, federal protective services, portland, protests, stingray, surveillance, us marshals