Thread by @AndrewMCrespo

Today on TV, the Deputy Director of the federal paramilitary force in #PDX discussed the infamous van video. He described a textbook example of an unconstitutional arrest.

But... he doesn’t seem to know it.

That is a BIG PROBLEM. Let’s unpack this. It’s important.
(thread)

Here (again) is the video of the van encounter.

https://twitter.com/greg_doucette/status/1283452585945583618

And here's the press conference, in which a reporter (at 35:02) asks @DHS_Wolf "what level of probable cause are you getting" in these encounters? Wolf turns it over to Kris Cline, Deputy Director of the Federal Protective Service.

Cline says "you're probably talking about the van," and goes on to give the government's account of what happened.

The agents, Cline says, were interested in the man in the video because, earlier, they'd seen him "in a crowd and in an area" where someone ELSE was aiming a laser at the eyes of officers.

I don’t know if shining a laser at someone is a federal crime.

It doesn’t matter.

The police do not have probable cause to arrest you just because you are standing near someone else who may have committed a crime.

We’ve all heard the saying that people shouldn’t be treated as “guilty by association.” Well, that’s also the law. To wit, Ybarra v. Illinois, 444 U.S. 85, 91 (1979).

Cline goes on to say that the agents followed the man in the video—whom they had no basis to arrest—to a calmer location, away from the courthouse, because they wanted to question him.

So far as the Fourth Amendment goes, if that’s all they’d actually done, there wouldn’t be an issue. The police are allowed to walk up to you and question you, in a “consensual” encounter, so long as a reasonable person in your shoes would think it's ok for you to walk away.

(Side note: These encounters often don’t feel consensual in the moment, even though a court will often deem them consensual as a legal matter after the fact. That’s a problem for another day.)

Maybe these agents planned to execute one of those “consensual” encounters, maybe not. But in any event, Cline admits—and the video is clear—that they did something very different: they forcibly removed the man from the scene.

Again, not because of anything he did.

According to Cline, the agents grabbed the man because they saw *other* people coming toward them and felt unsafe.

They wanted to leave. They didn’t want to let him leave. So they grabbed him and put him in a van and took him, in Cline's words, "to an area that was safe for both the officers and the individual to do the questioning."

Cline doesn't say explicitly where they took the man. But we know from other reporting that another person taken off the street in similar fashion, Mark Pettibone, was taken inside the federal courthouse. opb.org/news/article/f…

And Cline does explicitly say that the man he is describing (the man from the van video) was questioned for approximately 20 minutes -- something unlikely to have happened out on the street, given the agents' apparent fear of the surrounding crowd.

And then, after those ~20 minutes, the agents "released the individual." Why? Well, let's let Cline explain:

"They released the individual because they did not have what they needed."

Translation: They did not have probable cause.

(Note how this plays out. Eventually, government lawyers show up and apparently say to the agents -- you gotta let this guy go, you have no lawful basis to detain him.)

Ok. Those are the facts, according to the Deputy Director of the federal police force deployed in Portland (and, apparently coming to a city “lead by Democrats” near you).

As far as the Fourth Amendments goes, there's two important points here:

1. Cline admits the agents NEVER had probable cause to arrest this person. That’s why they let him go. They didn't have probable cause when the lawyers showed up. They didn't have probable cause when they put the man in the van. They never had it. And they aren't saying they did.

2. This man was arrested.

This isn’t one of those law school exam types of cases where you’re supposed to say “Well, *maybe* he was arrested.”

This is one of those bar exam types of cases where they ask you “Was this an arrest? (A) Yes (B) No.”

The answer is yes.

To wit, Dunaway v. New York, 442 U.S. 200 (1979), where the Supreme Court considered whether the police violated the Fourth Amendment when, without probable cause, they took someone "into custody, transported him to the police station, and detained him there for interrogation."

The answer is yes.

Just as in Dunaway, this man was "taken" from the street "where he was found," put into "a police car" (sorta), "transported to a police station" (inside the courthouse), "and placed in an interrogation room," where he was questioned.

That is an arrest. Period.

(See also Hayes v. Florida, 470 U.S. 811, 815 (1984))

So.... the most troubling part of Cline's statement is NOT when he acknowledges the lack of probable cause.

It's when he says that this "simple engagement" was perfectly constitutional because "it's not a custodial arrest."

That statement is glaringly wrong.

It's been wrong since at least 1979.

Let that sink in.

The person in charge of this newly beefed up, paramilitary federal police force DOES NOT KNOW WHAT AN ARREST IS.

That means he doesn’t know when he or his officers are committing one... illegally.

In violation of the Fourth Amendment.

Like they unquestionably did here.

Look, you can’t possibly conduct arrests lawfully if you don’t know your conducting them in the first place.

And if the Deputy Director of this new federal force will say on national TV that what these officers did was legal because "this wasn't an arrest," that raises serious concerns about what his officers are doing out on the street. When the cameras are on, and when they’re not.

That's it.