It Should Not Matter What Type of Officer Wrongly Arrests You: Using Civil Rights Actions to Protect Peaceful Protestors

Journal of Legislation Volume 48 Article 7 6-20-2022 It Should Not Matter What Type of Officer Wrongly Arrests You: Using Civil Rights Actions to Protect Peaceful Protestors Cole Craghan Follow this and additional works at: https://scholarship.law.nd.edu/jleg Part of the Legislation Commons Recommended Citation Cole Craghan, It Should Not Matter What Type of Officer Wrongly Arrests You: Using Civil Rights Actions to Protect Peaceful Protestors, 48 J. Legis. 370 (2021). Available at: https://scholarship.law.nd.edu/jleg/vol48/iss2/7 This Note is brought to you for free and open access by the Journal of Legislation at NDLScholarship. It has been accepted for inclusion in Journal of Legislation by an authorized editor of NDLScholarship. For more information, please contact . IT SHOULD NOT MATTER WHAT TYPE OF OFFICER WRONGLY ARRESTS YOU: USING CIVIL RIGHTS ACTIONS TO PROTECT PEACEFUL PROTESTORS Cole Craghan* INTRODUCTION On June 1, 2020, an operation headed by the United States Park Police (“USPP”) and the U.S. Secret Service cleared protestors from Lafayette Square outside the White House. 1 At the same time, then-President Trump spoke nearby in the Rose Garden; he recommended that governors across the country “dominate the streets“ and declared that he would deploy the United States military if governors did not take necessary action. 2 Then, from June 4, 2020 to August 31, 2020, federal officers were sent to a number of cities across the country to respond to ongoing protests; 755 federal agents were sent to Portland, Oregon alone. 3 This response by the Department of Homeland Security (“DHS”) involving agents from U.S. Customs and Border Protection (“CBP”), U.S. Immigration and Customs Enforcement, and the United States Secret Service (jointly “DHS officers”) was meant to protect federal property from ongoing protests. 4 The response, however, left much to be desired in terms of execution and exposed issues that arise when the government uses federal agents to respond to protests. A report conducted by the DHS Office of the Inspector General in April 2021 found that the DHS officers deployed to Portland were “unprepared to effectively execute“ the coordinated response and that without the necessary training, they could commit actions that result in “injur[ies], death[s], and liability.“ 5 DHS’s use of federal agents in response to protests was a common occurrence during the summer of 2020, and the possibility of using federal agents in the future seems legally justified even when acting outside the scope of protecting federal * J.D. Candidate, University of Notre Dame Law School, Class of 2023; B.A. in Political Science, DePaul University, 2020. Special thanks to Professor Jennifer McAward for her help and guidance on this Note. 1. OFF. OF INSPECTOR GEN.: U.S. DEP’T OF THE INTERIOR, REVIEW OF U.S. PARK POLICE ACTIONS AT LAFAYETTE PARK, at 3 (2021), [hereinafter REVIEW OF U.S. PARK POLICE ACTIONS AT LAFAYETTE]. 2. Donald Trump, President, White House Rose Garden, Speech on Protests Against Police Brutality (June 1, 2020) (transcript available at www.trumpwhitehouse.archives.gov/briefings-statements/statement-by-t he-president-39/) [hereinafter President Trump: Speech on Protests Against Police Brutality]. 3. Maxine Bernstein, Federal Agents Sent to Portland to Defend Courthouse Lacked Consistent Training, Equipment or Use of Force Policies, Report Says, OREGONIAN/OREGON LIVE (Apr. 21, 2021, 10:10 AM), www.oregonlive.com/crime/2021/04/federal-agents-sent-to-portland-to-defend-courthouse-lacked-consistent-t raining-equipment-or-use-of-force-policies-report-says.html. 4. See REVIEW OF U.S. PARK POLICE ACTIONS AT LAFAYETTE, supra note 1. 5. OFF. OF INSPECTOR GEN., DHS HAD AUTHORITY TO DEPLOY FEDERAL LAW ENFORCEMENT OFFICERS TO PROTECT FEDERAL FACILITIES IN PORTLAND, OREGON, BUT SHOULD ENSURE BETTER PLANNING AND EXECUTION IN FUTURE CROSS- COMPONENT ACTIVITIES (2021), https://www.oig.dhs.gov/sites/default/files/ass ets/2021-04/OIG-21-31-Mar21.pdf [hereinafter DHS REPORT]. 370 371 Journal of Legislation [Vol. 48:2 property. 6 One power of CBP is based on their actions done within 100 miles of a U.S. border; this is referred to as the “Border Zone.” 7 Within these areas, CBP agents are given broad authority to conduct stops and searches, even when done outside of checkpoints, as part of a “roving patrol.“ 8 When cities like Portland, Washington, D.C., and Chicago fall within these zones, that means there are ever-increasing possibilities of constitutional violations based on expansive powers of federal agents. 9 In response to the presence of these powers being used nationwide in 2020, this Note will not focus on whether the DHS or any federal agent were or should be liable for the actions that took place during the protests in the summer of 2020, as those cases will continue to be litigated . 10 Rather, this Note will focus on the ability for civil rights actions to be brought against federal agents when they are used in response to protests. Civil rights actions against state actors are traditionally brought through 42 U.S.C. § 1983, which grants liability against those acting under state law who have committed constitutional violations. 11 It only grants liability to those working under the law of states, territories, or districts of the United States. 12 Section I of this Note examines § 1983 more in- depth, and specifically looks at the restrained outcome of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, which attempts to extend § 1983 to federal agents. 13 The Section will follow the history of Bivens in cases such as Davis v. Passman 14 and Carlson v. Green, 15 which show both 16 very limited expansions of what is now known as a “Bivens action.“ Next, Section II follows the recent upswing in the usage of federal agents in responding to protests and possible limits of their powers that may or may not exist. After going through the protests occurring today, Section III examines the especially vulnerable nature of protests and protestors in relation to the response from federal agents, and how varying motives behind responding to protests can criminalize what was previously legal First Amendment activity. Finally, Section IV 6. See discussion infra Section II. 7. The Constitution in the 100-Mile Border Zone, ACLU, https://www.aclu.org/other/constitution-100-m ile-border-zone (last visited May 22, 2022) [hereinafter ACLU Border Zone]. 8. Deborah Anthony, The U.S. Border Patrol’s Constitutional Erosion in the “100-Mile Zone”, 124 PA. ST. L. REV. 391, 407 (2020) (discussing the powers given to CBP Agents during stops within the 100-mile zone). While roving patrols are a separate issue, they are often done with limited justification, representing the widespread powers that federal agents carry. ACLU Border Zone, supra note 7. 9. ACLU Border Zone, supra note 7. Nearly two-thirds of the U.S. population, including nine out of ten of the largest U (...truncated)