Cities have little say over presence of federal law enforcement

Some mayors are pushing back against President Donald Trump sending federal law enforcement to their cities. However, unless those federal personnel are breaking the law, there is little the mayors can do, other than go to court and seek restraining orders to block them from making illegal arrests, experts say.

The program to send federal law enforcement to cities like Portland, Chicago and Kansas City, all run by Democratic mayors, has been dubbed “Operation Legend,” to honor LeGend Taliferro, a 4-year-old shot and killed in Kansas City in June. Trump contends he is sending in federal officers to deal with “out of control” violent crimes, but there are numerous instances in which those federal law officers are accused of overstepping their authority, using excessive force and arresting people without probable cause, which is illegal.

“There are federal officers arresting people far from the federal building or federal property,” Erwin Chemerinsky, dean of the UC Berkeley School of Law told The Los Angeles Times. “That is not enforcing federal law. This is disrupting peaceful protests, and that would violate the First Amendment. There are also reports of arrests without probable cause, which violates the Fourth Amendment.”

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Trump has further suggested that he might use the Insurrection Act to quell the protests following the death of George Floyd, a plan to send in the military that has been questioned by his own defense secretary, Mark Esper.

“The option to use active duty forces in a law enforcement role should only be used as a matter of last resort, and only in the most urgent and dire of situations,” Esper said, according to The Times.

Since the end of the 1960s, the use of the Insurrection Act has been rare. It had previously been used during Civil Rights protests and riots. Congress amended it in 2006 following Hurricane Katrina to make military assistance more effective, but states objected, and the amendment was repealed.

All that being said, the federal government does not need an invitation to send federal law enforcement anywhere it is deemed necessary, said CNN analyst Elie Honig, with the Lowenstein Sandler law firm in New Jersey and New York. 

Elie Honig

“According to the Department of Justice, there are 100,000 federal agents, with the FBI being the most visible, but also the Bureau of Alcohol, Tobacco and Firearms, the Department of Homeland Security, the Drug Enforcement Administration and dozens more,” Honig said. “Their job is to investigate and help prosecutors charge violations of federal crimes. However, the federal government can deploy federal agents anywhere and they do not need an invitation to do so. That said, the Constitution makes clear and the Supreme Court has held that it is a state function, not a federal function, to police the general safety and welfare, which is why federal officers don’t respond to 911 calls or make traffic stops.”

Ideally, he said, the federal government might notice a spike in federal crimes and offer to send resources. The state would typically be happy to coordinate and share resources to maximize the impact.

“That is the way it should work,” Honig said. “You don’t want the feds sending in agents for show or political purposes. Is there really a need here and is it a federally cognizable need? A lot of it lies in the details. How are they being deployed? If they are deployed and worked on certain types of violent crimes that are federally chargeable, then fine.” 

Federal agents can also protect and secure federal property, he said. “But what we are seeing in Portland is unmarked, unidentified federal agents. It is a matter of accountability. You also see officers using excessive force, which is a problem whether local or federal. And there are reports of them making arrests without probable cause and for things that are not federal crimes” far from federal buildings.

Trump sent 45 agents and officers from Customs and Border Protection to Portland, and about another 150 from other agencies to protect federal buildings from late-night violence that followed protests after George Floyd was killed by a police officer.

Trump announced July 22 that he plans to send more federal law enforcement agents into Chicago and Albuquerque. That is being cast as an effort meant to help fight crime, The Washington Post reported.  

“In recent weeks, there’s been a radical movement to defund, dismantle and dissolve our police departments,” Trump said in a speech. “Extreme politicians have joined this anti-police crusade and relentlessly vilified our law enforcement heroes. To look at it from any standpoint, the effort to shut down policing in their own communities has led to a shocking explosion of shootings, killings, murders and heinous crimes of violence.”

Trump also cited a recent episode in Chicago where five people were injured – two died – in a shooting outside a funeral home. 

“We must remember that the job of policing a neighborhood falls on the shoulders of local, elected leadership,” the president said. “When they abdicate their duty, the results are catastrophic.”

Chicago Mayor Lori Lightfoot, during a news conference, called the president’s speech a “political stunt. The president is trying to divert attention from his failed leadership on COVID-19.” 

U.S. Attorney General William Barr said more cities could be added to the operation in the weeks ahead. Barr has stated that more than 200 federal agents have been sent to Kansas City and said Chicago will get a similar number, while Albuquerque will get 35 agents. He said the agents will be added to existing anti-violence crime task forces. Lightfoot said it is too soon to know if adding federal agents to existing violent crimes task forces will be helpful or not.

“A lot turns on how agents are being deployed and why,” Honig, the legal analyst said. “We are seeing the federal government using broad discretion on how it uses federal agents and seeing them push the outer boundary. We don’t know how they are going to be deployed.”

The ideal scenario would be if the feds had data showing a surge in violent crimes and used that data to coordinate with local authorities. “The worst case is no actual needs, but the feds sending their people in, anyway. That is not illegal, but it is far from ideal,” Honig said.

Where the situation becomes questionable, he said, is if the federal agents are making arrests for state-level crimes or with no probable cause. “That is patently illegal and improper.”

Local authorities can ask the courts to prohibit federal agents from doing anything illegal, but not much more, he said. “In terms of barring the feds or ejecting them, that is just not going to succeed.”