The Trump administration’s deployment of 200 Oregon National Guard troops to Portland is “tailored to the threat” at the ICE building in the city, where “cruel activists” have used “vicious tactics” to damage the office and harass officers, Justice Department lawyers wrote Thursday in their opposition to the state’s challenge.
The Immigration and Customs Enforcement building closed for three weeks from June 13 through July 7 after people protesting President Trump’s immigration crackdown broke windows and security cameras, blocked the driveway, spray-painted violent threats on the property, tailed government vehicles leaving the building to homes or hotels, doxed ICE officers and menaced them at their residences, the lawyers argued.
The Federal Protective Service, the regular security force charged with protecting the office, “is stretched to the point of collapse,” providing 24-7 protection due to the lack of Portland police assistance, the lawyers said in their filing.
The federal code’s Title 10, Section 12406 allows President Trump to call up the Guard to thwart the “danger of a rebellion” against U.S. government authority by large groups of protesters who are stopping federal officials from enforcing the law, they wrote.
“The Portland ICE facility has been an especially risky site because of repeated and recent acts of violence, the Portland Police Department’s inability to provide an adequate response, and a history of mob violence dating back to 2020, which has often been tolerated or excused by local and state officials,” the lawyers wrote.
The federal lawyers will square off with attorneys from the state and city of Portland at 10 a.m. Friday as the state and city urge U.S. District Judge Karin J. Immergut to issue a temporary order blocking the troop deployment.
The federal response to Oregon’s lawsuit contends the U.S. government was willing to pay for the National Guard deployment and leave the troops under the control of Gov. Tina Kotek if she had agreed to the president’s directive. Kotek had 12 hours to make a decision last Saturday, the U.S. Justice Department lawyers said.
Major General Timothy L. Rieger, acting vice chief of the National Guard Bureau, said he received an email from Oregon’s Adjutant General Alan R. Gronewold at 10:05 p.m. last Saturday informing him that Kotek had rejected Trump’s offer to stand up the troops under her command.
When she refused, Defense Secretary Pete Hegseth on Sunday mobilized 200 Oregon National Guard troops into federal service for 60 days under federal law, the response said.
The filing noted that Homeland Security requested more support at Portland’s ICE facility two days after a sniper fired at a federal immigration office in Dallas killing two detainees and argued that the officers at the Portland ICE office faced an “especially high” risk. The suspect died by suicide and was allegedly targeting ICE agents, not detainees, authorities said.
Homeland Security’s Sept. 26 memo requested support for ICE and Federal Protective Service in Portland who have come under “coordinated assault by violent groups” intent on obstructing lawful federal enforcement. It claimed the groups were aligned with “domestic terrorist” organizations and were working to impede immigration enforcement and deportations through “violent protest, intimidation and sabotage of federal operations.”
“The facility is subject to nightly protests, which risks escalation at any moment,” Robert Cantu, deputy director of the Federal Protective Service Region 10 that covers Oregon, Washington, Idaho and Alaska, said in a sworn statement filed in court.
Rieger confirmed in court papers that no National Guard members are active in federal service in Portland as of Thursday but are in the process of being mobilized.
Lawyers for the state and city have countered that protesters have dwindled in number in the last month and a half, that local police have the area “under control” and that federal officers face no significant dangers, let alone anything approaching a “rebellion.”
On Thursday, Multnomah County District Attorney Nathan Vasquez filed a brief in support of the city and state’s attempt to block the troop deployment.
“The total number of mass demonstration cases is a fraction of what this office saw in 2020 and less on an annualized basis than we saw last year,” Vasquez wrote.
“Demonstrations are not out of control in Portland. Portland is not a ‘war zone.’ … I believe based on my personal experience on the ground in the 2020 unrest that the deployment of federal personnel not trained in local policing to the streets of Portland risks creating, not mitigating, the very conditions it is alleged to target.”
California Gov. Gavin Newsom also filed a brief Thursday in support of Oregon’s challenge.
He wrote that his state already suffered from the deployment of 4,000 National Guard troops to Los Angeles in June – “harm to its sovereign interests and police powers, the physical and economic well-being of its residents, and the morale of its National Guard troops and their families. These same irreparable injuries will befall Oregon and Portland if Defendants’ illegal federalization order is allowed to be carried out.”
The federal government argued that Oregon and Portland have failed to show how they’ll be harmed by the troop deployment, noting that the 200 troops represent about 3% of the Oregon National Guard, and is “miniscule,” compared to the troops federalized in California.
“The Guard will only be protecting federal property and personnel — not engaging in law enforcement — and they will certainly not be exercising any police powers customarily performed by the State,” the brief said.
Justice Department lawyers and federal officials criticized the Portland Police Bureau for refusing to help federal officers at the immigration office.
The Department of Homeland Security and the Federal Protective Service requested help from the Portland Police Bureau to no avail, Cantu said.
The Federal Protective Service typically would rely on the Police Bureau to assist with large-scale law enforcement operations at federal facilities in Portland, Cantu wrote. But police informed the agency that they would respond only to “life/safety” situations and not immigration issues, he wrote.
As a result, the Federal Protective Service brought in 115 officers to Portland to help “contain the violence” and has spent more than $2 million in overtime pay and expenses to respond to protests since June 5, according to Cantu.
Portland police have said their Central Precinct command has monitored events at the ICE building but hasn’t sent officers there regularly because the situation didn’t require it.
Craig Dobson, a Police Bureau assistant chief of operations, also said federal agents were “instigating and causing some of the ruckus” outside the ICE building and described federal officers using force that had no apparent purpose or substantially escalated tensions.
Under Oregon’s “sanctuary” law, no state or local law enforcement agencies are allowed to cooperate with federal immigration enforcement.
According to the federal government, Homeland Security’s separate Portland Special Response Team, a tactical unit that does high-risk operations and responds to dangerous situations, has “been depleted” by having to reassign many of its officers to protect the ICE building seven days a week. The Federal Protective Service has relied almost exclusively on the ICE’s Special Response Team for help.
Instead of working with the federal officers, the city has demanded the removal of some of the boards covering the ICE building to protect its windows and presented a notice of a zoning violation for boarding up the building without design review approval, the federal filing said.
Portland police records obtained by The Oregonian/OregonLive do show they have turned down some of the requests to help federal officers at the ICE building.
A Portland police activity log from June 17, for example, reads: “ICE Tom Persad requests PPB assist with clearing the street and driveway so they can exit the facility with their vehicles. I declined the request and explained our policy prohibiting us from helping with their operations. He understood, and will take appropriate measures to make this movement without PPB assistance.”
Another police activity log entry on June 25 says:” IF IT WERE NOT ICE, WE COULD ASSIST DIRECTLY CITY COUNCIL POSTURING AND MESSAGING AND NO PPB PRESENCE HEAVY HANDED FED RESPONSE FIRED UP AND GALVENIZED CROWD.”
Cammilla H. Wamsley, the Seattle-based field office director for U.S. Immigration and Customs Enforcement’s Enforcement and Removal Operations, said there are about 30 officers at the Portland immigration building responsible for enforcing immigration law.
She said her officers have been assaulted with rocks, bricks and incendiary devices, including a lit flare thrown at the building in June. Protesters spray painted direct threats against ICE officers on the building, and have assembled at times a mock guillotine outside, she wrote in a sworn declaration filed in court.
The local Homeland Security Investigations office also received a tip that someone planned to detonate an explosive at the ICE office on Sept. 19, according to Wamsley. That month, Homeland Security Investigations sent three special response teams of agents to the Portland building as support.
The Justice Department lawyers made the argument, as they did in the case of Guard troops deployed in California, that the Posse Comitatus Act is a criminal law, not an administrative law, so the state and city can’t raise it as part of a civil claim. The act outlaws using the military to execute laws without congressional authorization.
Regardless, the government reiterated that the troops in Portland are restricted to protecting federal officers and property and not authorized to execute any federal laws.
“Indeed, Plaintiffs brought this suit and seek extraordinary relief before the Guardsmen have even been deployed, and thus necessarily have no basis for their contention that the Guard will engage in law enforcement prescribed by the (Posse Comitatus Act,)” they wrote.
While the federal lawyers argue that the Guard members won’t be involved in any law enforcement actions, Cantu of the Federal Protective Service wrote that the troops will provide his officers with “direct support related to federal facility protection, access control and crowd control measures.”
“The National Guard members supporting FPS will be instructed to call an FPS officer anytime a law enforcement response at a federal facility is necessary and to wait for the FPS officer to respond, to the extent practicable,” he wrote. ”FPS is very familiar with this type of arrangement, as it is similar to the relationship that FPS has with the contract security guards who do not have any law enforcement authority but provide facility protection, access control and crowd control.”
U.S. District Judge Charles R. Breyer of San Francisco in his September injunction against the federalizing of California National Guard troops, said they were restricted from any crowd, traffic, security or riot control. His injunction is on hold, awaiting a full appeal before the 9th U.S Circuit Court of Appeals.
The Justice Department lawyers, in their filing, said if a judge is inclined to grant any of the state’s and the city’s motion, it should be limited and bar “only specific activities” of the National Guard troops, not their full deployment to Portland.
If an order is issued, they also urged it to be in the form of a longer-lasting preliminary injunction, and put on hold as the federal government likely would appeal, according to their filing.
— Fedor Zarkhin of The Oregonian/OregonLive contributed to this report.
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