Trump’s Power and Limits in Policing U.S. Cities

(Bloomberg) -- Enforcing law and order in U.S. cities, traditionally the function of local, county and state police, is a new priority of the federal government. President Donald Trump said the deployment of federal agents in Portland, Oregon, will be replicated in Chicago, Seattle and Albuquerque, New Mexico, to help combat violent crime and civil unrest. At least some state and local leaders say they don’t welcome the assistance.

1. Isn’t policing a local issue?

Generally speaking, yes -- the U.S. Constitution reserves police powers for states to exercise. The federal government’s involvement at the local level is limited to specific purposes such as combating crimes covered by federal law (examples are bank robbery, kidnapping, weapons possession and counterfeiting), protecting federal properties like courthouses and safeguarding U.S. constitutional rights. When James Meredith tried enrolling as the first Black student at the University of Mississippi in 1962, President John F. Kennedy dispatched 127 deputies from the U.S. Marshals Service to support him.

2. Who are these federal law enforcement officers?

The Department of Homeland Security has about 2,000 officials from its divisions, including Customs and Border Protection and Immigration and Customs Enforcement, on standby for possible deployment to cities, according to the New York Times. Federal agents deployed on the ground in cities also include officers from the Marshals Service, the Drug Enforcement Agency, the Bureau of Alcohol, Tobacco, Firearms and Explosives and the Federal Protective Service. There were at least 114 such federal officers in Portland, a Justice Department attorney said in a virtual federal court hearing on July 22.

3. What power does the president have to deploy them?

The president can send federal forces into cities so long as they stay within their statutory authority of “enforcing federal law,” David Sklansky, a Stanford Law School professor, said. But that distinction can become hazy once federal officers have boots on the ground. Some critics wonder if Trump is using the protection of federal buildings as a pretext to get federal officers involved in patrolling streets and targeting protesters. The president can also invoke the Insurrection Act, a rarely used, 213-year-old law, to deploy military force to quell unrest. It was last used in 1992, to respond to Los Angeles riots following the acquittal of four white police officers charged with beating a Black motorist, Rodney King. Trump in June threatened to resort to military action to quell protests and violence in U.S. cities but has yet to do so.

4. Is this what the Department of Homeland Security is for?

No, say some critics, including Tom Ridge, who was first to lead the department after it was created following the Sept. 11, 2001 terrorist attacks. In creating the department with the goal of fighting terrorism, Congress combined 22 agencies into the largest law enforcement entity in the federal government. Homeland Security has a sprawling field presence with personnel in almost every state and major urban area. In the wake of the current controversy, Congress may seek to reevaluate and curb the department’s policing powers.

5. Can cities decline help or kick out federal officers?

Again, not if those officers are protecting federal rights and enforcing federal crimes such as vandalizing a courthouse or post office. “Portland can’t say, ‘We don’t want you in our cities -- go home,’” said Andrew Crespo, a professor at Harvard Law School. Federal authority generally prevails under the Constitution when it conflicts with state authority, he said. More plausible legal challenges might focus on the conduct of the officers -- for instance, whether they are violating free-speech rights by discouraging demonstrations or protections against unreasonable seizures and searches. Oregon’s attorney general, Ellen Rosenblum, unsuccessfully sought a court order to block federal agents from detaining protesters without explanation.

6. Are there other ways cities can put limits on officers’ tactics?

The Seattle City Council passed a law in June that bans police from using crowd-control weapons like tear gas, pepper spray and blast balls. The measure was supposed to take effect July 25, just as federal agents descended on Seattle streets ahead of a likely tense weekend of protests. But in an emergency court hearing the night before, a federal judge temporarily blocked the law. He reasoned that implementing it without time for additional direction or training would create confusion among officers, potentially endangering the public and police personnel.

The Reference Shelf

• A QuickTake on the Insurrection Act and deploying troops on U.S. soil.
• Civil-rights groups in Chicago have sued to keep federal officers out.
• A Bloomberg Opinion editorial says federal officers are doing more harm than good in Portland.

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