Portland, Oregon — On the evening of July 18, 2020, a phalanx of federal officers broke out from the U.S. courthouse in downtown Portland and advanced on protesters who were gathered nearby.
Several protesters were knocked to the ground by the officers as they drove into them, as witnessed by Chris David, who was in the park across the street. Following George Floyd’s death in Minneapolis, nightly racial justice demonstrations rocked the city for weeks, and federal authorities responded to sporadic acts of violence by sending in more law enforcement.
Though the veteran of the Navy had never taken part in a protest before, he felt increasingly uneasy as he watched the number of federal officers rise at the behest of then-President Donald Trump, so that evening he made the decision to see for himself. David approached the group of armed officers who were donning body armor
As I stood there, I began to repeatedly ask them the same question: ‘You are breaking your oath to the Constitution. Why do you feel the need to break your oath to the Constitution? In an interview, David stated.
He never received a response.
He confronted four officers wearing masks and helmets, who he later identified as deputy U.S. Marshals. David staggered backward and then seemed to regain his balance after being shoved by one of the officers. David claimed that one of the officers then pointed a gun at him.
Then, according to David, one officer sprayed him in the face with a chemical irritant while another repeatedly struck him on his left side with a baton.
David staggered off, his hand fractured in two. The video clip went viral very fast.
After that, he filed a federal lawsuit, claiming that certain officers had violated his constitutional rights. These lawsuits are referred to as “Bivens claims” because of a 1971 Supreme Court decision that permitted them.
The Untouchables: NBC News looks into the ways in which federal law enforcement agents can injure people and get away with it.
He said that regardless of what they had been told to do, it was crucial that the officers be held responsible for their own actions. He went on to say, “One of the first things they taught us is that you are never to follow an illegal order when you study at the Naval Academy.” Always.”
The violent demonstrations of that summer are gradually disappearing from memory, but three years later, the participants are still facing challenges, sometimes in the form of legal issues but sometimes in their day-to-day lives. Several demonstrators, including David, have accused federal officers of being unduly combative. They have accused them of hitting people with batons, shooting non-lethal projectiles, and, on multiple occasions, of snatching people off the street without cause.
However, despite allegations made by David and other protestors, not a single federal officer who was present on Portland’s streets at the time has been held personally liable for alleged constitutional violations. In actuality, judges haven’t had a chance to determine whether there were any constitutional violations at all.
That is because of the Supreme Court’s intervention, which through a series of decisions has established an environment devoid of accountability wherein federal officials who regularly interact with the public—be they an FBI agent conducting a raid, a bureaucrat sitting behind a desk, or a corrections officer in jail—can violate people’s constitutional rights without consequence.
A 2022 Supreme Court decision in the case of Egbert v. Boule has had widespread effects across the country, as reported by NBC News. Although allegations against Border Patrol agents appeared to be the only focus at first, the implications were much wider.
After being falsely accused of being a spy, a Chinese American could not file a Bivens claim against FBI agents. Officials from the Social Security Administration could not be sued by a woman who falsely claimed to be dead. A Hispanic man was arrested by U.S. Marshals for mistaken identity, but he was unable to pursue his claim for wrongful arrest.
According to data from NBC News, plaintiffs have lost cases against a wide range of federal agencies in the year since the Egbert decision, many of which have nothing to do with immigration or border issues. Judges rejected Bivens’ claims after citing the Egbert decision case after case.
Bivens’s claims were largely rejected
When courts make decisions about the viability of constitutional claims, government agencies typically win.
Cases most affected have been those involving claims made by inmates of federal prisons.
In the year following the ruling, NBC News identified 228 cases in which Egbert dismissed Bivens’s claims; 142 of these cases involved claims made by federal prisoners, many of whom were unrepresented. In 123 of those instances, the prison authorities won. In one, a female prisoner was denied the opportunity to pursue her allegation that a prison official had sexually assaulted her. A judge rejected a claim that an inmate who died from Covid-19 had not received the necessary medical care in one of the many cases involving allegations regarding the care of prisoners during the pandemic.
James Pressley, a former inmate of a federal prison in Terre Haute, Indiana, who contracted COVID-19 in 2020, filed a lawsuit alleging that insufficient measures were taken to safeguard prisoners, thereby breaching his constitutional right to sufficient medical care under the Eighth Amendment, which forbids cruel and unusual punishment. Following the reversal of his drug-related convictions on appeal, Pressley was allowed to leave prison.
At the two-building federal prison complex in Terre Haute, a total of seven prisoners passed away from COVID-19. January of this year saw the dismissal of the Bivens claims.
Pressley stated in an interview that “I think Bivens needs to be reconsidered because it gives officers free rein to do whatever they want without facing the proper consequences.” “Inmates still have human rights even after they have been found guilty. Furthermore, it is still against the Constitution to violate human rights.
In a number of other decisions, judges demonstrated that they understood the Supreme Court’s message. Judge Bobby Baldock of the 10th U.S. Circuit Court of Appeals, located in Denver, once ruled in favor of prison officials regarding an inmate’s claim of excessive force, stating that “lower courts expand Bivens claims at their peril.” District Court Judge Derrick Watson of Hawaii dismissed a second prisoner’s Bivens claim regarding subpar medical care, stating that the Egbert ruling “tightened the noose around Bivens.”
Judge David Hamilton of the Chicago-based 7th U.S. Circuit Court of Appeals stated in a dissenting opinion published last month in another case that such lawsuits are even more crucial in light of the circulating claims that federal agencies are being used as weapons to punish political opponents.
But because of recent rulings by the Supreme Court, he pointed out that “a federal agent who violates the Constitution to carry out the policies of the federal executive branch now has little to fear in terms of direct accountability”.
“Cases of zero Bivens”
With hundreds of federal officers battling energetic and occasionally violent protesters in Portland in 2020, David’s encounter was just one of many that resulted in court proceedings due to the unstable circumstances surrounding the city.
When federal officers moved closer to David, Duston Obermeyer, a veteran of the armed forces, was hit and doused with a chemical irritant.
Mark Pettibone claimed that in the wee hours of July 15, he was taken off the street and thrown into the back of an unmarked van.
Professor of history Maureen Healy claimed that on July 20, she was hurt by a nonlethal bullet that was shot by police.
In another incident captured on camera on July 11, Donavan LaBella was struck in the head by a nonlethal projectile while he was standing in front of the courthouse.
These are but a handful of the other demonstrators from Portland whose constitutional claims have fallen flat.
“It is recommended that the claims made by David, Obermeyer, and Pettibone be dismissed. This is because the U.S. Supreme Court’s recent decision in Egbert v. Boule foreclosed the availability of a so-called Bivens cause of action,” U.S. Magistrate Judge Youlee Yim You wrote in a September 2022 decision. Later, U.S. District Judge Michael Simon approved of her conclusions.
Judges in Portland came to the conclusion that they had to reject Bivens’ claims in five different cases. Three of the rulings specifically referenced Egbert when rejecting the Bivens claims.
In three additional Portland cases, plaintiffs concluded that it was pointless to pursue their Bivens claims in light of Egbert. In Portland, there are still some active Bivens claims, but only because the attorneys have stopped pursuing them due to challenges in identifying the officers they are attempting to sue.
Although the Portland plaintiffs are not suing the specific officers in their individual capacities, they do have other pending claims that seek damages for alleged constitutional violations.
Civil rights attorney Juan Chavez of Portland stated, “Three years later, we still haven’t had a trial on what happened in 2020 involving federal officers, and it might never happen.”
The Supreme Court decided 6-3 in the Egbert case that a lawsuit alleging constitutional violations against individual Border Patrol agents would need special congressional authorization. Bivens v. Six Unknown Named Agents, a 1971 precedent that initially held that federal officials could be sued for constitutional violations in the same manner as state and local officials under the 1871 Civil Rights Act, was overturned by the court.
Webster Bivens, who accused federal agents of using excessive force and conducting an illegal search without a warrant, was successful in getting his case heard by the court. The agents had handcuffed Bivens in front of his family. Consequently, “Bivens claims” came into being.
In the beginning, the Supreme Court clarified Bivens in two more decisions. In 1979, a due process claim regarding sex discrimination committed by a member of Congress against an employee was granted by the court in the case of Davis v. Passman. In Carlson v. Green the following year, the court upheld an inmate’s allegations of medical indifference against federal prison officials.
That was the limit of the court’s reach. Early in the 1980s, things started to change, and the Supreme Court has since declined to apply Bivens in additional situations case after case. This pattern has persisted in the last few years. In the Ziglar v. Abbasi case from 2017, the court rejected allowing federal officials to be sued for the roundup of Muslims in New York following the events of September 11, 2001. In Hernandez v. Mesa, decided two years later, the court decided in favor of a Border Patrol agent who was trying to defend himself against a civil rights lawsuit for the death of a Mexican teenager who was crossing the border illegally.
The fact that judges are rejecting claims even in situations where the facts somewhat resemble the three cases in which the Supreme Court had expressly endorsed Bivens’s claims highlights the feeling that Egbert completely overthrew Bivens.
In one instance, an FBI agent’s use of flash-bang grenades during a search of a nearby flat precluded a woman from suing them for excessive force. In a different raid case, even though the man was not the one being sought, he was unable to file a lawsuit against Immigration and Customs Enforcement (ICE) agents for using excessive force against him.
Even he “probably doesn’t have a claim under Bivens” if something similar to what happened in Webster Bivens’ case occurred today, according to Nadia Dehab, a Portland attorney who defended demonstrators in other cases resulting from the 2020 unrest.
Plaintiffs’ solicitors have taken notice, as evidenced by the cases in Portland where Bivens’s claims were withdrawn.
Plaintiffs’ attorney Julia Yoo, of San Diego, stated, “I have filed exactly zero Bivens cases in the past 12 months.”
“Operation Devoted Heroism”
The Mark O. Hatfield Courthouse downtown is still surrounded by a security fence more than three years after the protests in Portland, and guests must still enter through a side door because the original glass-fronted entrance is still barred.
The demonstrators who used to congregate in the park across SW 3rd Avenue have long since dispersed, and on a recent weekday, there were no federal officers in the area to be seen keeping watch.
The federal courthouse, a modest 1990s tower that protestors perceived as a fortress, quickly became the target of the crowd’s ire and frustration on May 29, 2020, shortly after the protests got underway. While the majority of protesters were peaceful, there were occasional violent outbursts that included attacks on law enforcement personnel and vandalism.
Amid this volatile situation, Trump issued an executive order on June 26 ordering his administration to assign personnel to protect federal property.As a result, the Department of Homeland Security began what it dubbed “Operation Diligent Valour” that same day to support the Federal Protective Service in safeguarding the facilities in Portland.. The Marshals Service, which is part of the Justice Department, was involved separately as part of its normal role of providing security at federal courthouses.
There were only seven full-time FPS officers stationed at federal facilities in Portland before the start of the unrest. 755 DHS officers participated in Operation Diligent Valour between June and August, according to a later report by DHS Inspector General Joseph Cuffari that criticized the plan’s execution.
According to civil rights attorney Chavez, “it felt like an alien invasion” with federal officers, who frequently lack the proper identification badges, gathered not only on the street but also on a platform that resembles a rampart and overlooks the park.
Billy Williams, the U.S. attorney for Oregon at the time, saw things differently because his office was housed inside the structure.
The courthouse became a target, and although the majority of protesters were nonviolent, he witnessed vandalism, broken windows, and other damages to property. As he attempted to enter and exit the building, he and other federal employees encountered harassment.
The protesters were largely peaceful during the day, but Williams claimed in an interview at a coffee shop right behind the courthouse that “things started getting out of hand” at night.
He went on, “The truth is that someone needed to be guarding the buildings.”
Government representatives and attorneys representing individual officers defended the federal officers’ actions by pointing out in court documents how dangerous and quickly changing Portland was at the time, and how officers had the right to disperse crowds when local police declared an unlawful assembly. They also urged judges to reject Bivens’s claims by citing recent rulings from the Supreme Court.
Lawyers for two unnamed deputy U.S. Marshals filed a motion to dismiss David and Obermeyer’s claims in court, arguing that the court had never supported claims against deputy U.S. Marshals or pertaining to “the protection of federal property,” which set them apart from cases where Bivens’s claims had been upheld.
The attorneys, Ross Nabatoff and Justin Rusk, stated that “Bivens actions based on excessive force have only been extended to contexts where the use of force was incidental to the use of the search and arrest powers granted by law enforcement, not the application of the statutorily specified authorities meant to safeguard federal property.”
In a joint interview, Rusk and Nabatoff stated that although they did not think their clients had overreached themselves in defending federal property, the deputies were still the focus of an internal probe.
Speaking generally about the investigative process, Nabatoff stated that in the event that misconduct is found, officers may face reprimands, suspensions, or even termination.
“It can occur occasionally,” he continued.
Other solicitors who represent officers remained silent and did not provide interviews with their clients.
It’s still unknown if any federal officers received internal discipline or if that will happen as a result of their conduct. DHS declined to comment as did the Department of Justice. According to a spokeswoman, the inspector general of the Justice Department is still looking into the use of force in Portland.
Numerous protesters were taken into custody during the demonstrations. In roughly 300 cases, local and federal prosecutors brought criminal charges. The federal government calculated that the overall cost of Operation Diligent Valour was $12.3 million, while the damage to the courthouse facility was estimated to have cost $1.6 million.
Williams, a former US attorney, felt that the rhetoric of the Trump administration was too polarizing, but he does not criticize the federal response in its entirety.
It didn’t seem to get out of control I believe they were brought in under extremely difficult circumstances,” he said.If people committed wrongdoing, “that’s a different matter.” You have an investigation because of this,” he continued.
Several plaintiffs in Portland who spoke with NBC News expressed indignation that their constitutional claims are being denied, despite the fact that in certain situations they may be able to pursue alternative remedies that could result in payments from the federal government. However, there is minimal deterrent impact for individual officers in the absence of constitutional claims.
“I don’t think we have been proven wrong yet, myself or those who share my pessimism about policing and the federal government’s operations. After being taken off the street, Pettibone was briefly detained and then freed without being charged. “We’ve only been proven right,” he said.After being struck in the head, history professor Healy, who also had a black eye and concussion, felt as though history was repeating itself. She noticed some similarities because she teaches about the authoritarian regimes of 1930s Europe at Lewis and Clark College.
In an interview conducted in the high-rise conference room of her lawyers in downtown Portland, she stated, “As a historian, I felt that things were escalating under the Trump administration that summer, beginning to take on characteristics that could be listed in an authoritarian manifesto.”
“I believe that having federal accountability is particularly important, especially considering the current state of politics,” she said.
In an interview, Obermeyer, the veteran standing next to David after he was sprayed in the face and struck, drew a similar comparison, pointing out that Nazis on trial at Nuremberg after World War II had attempted to argue they were just carrying out orders.
The Nazis at Nuremberg found that it was ineffective. He said, “It shouldn’t work in the United States either.
David continues to have pending separate claims against the federal government, just like the other plaintiffs. However, his case is now only against the United States government and not the specific officers, even though he could still win damages.
He claimed that a successful lawsuit against the officers could have served as a deterrent and promoted discipline among the ranks, drawing on his experience in the Navy.
However, the contrary message has now been received.
He stated, “You can take almost any illegal or unconstitutional behavior against somebody else and you’ll never be held accountable for it if you work for the federal government.” “That is ridiculous.”
