Images and videos of protests on the streets of Portland have filled social media feeds and cable news broadcasts. There have predominantly been two dueling narratives: peaceful demonstrations versus riots.
Now Oregon officials and the Trump administration are poised to portray similarly dueling views in the austere halls of the city’s federal courthouse on Friday.
The state’s governor, attorney general and Portland’s mayor believe the administration has overstepped. They’ve filed a lawsuit and a restraining order to immediately block Trump from deploying 200 federalized members of the Oregon National Guard.
Trump, meanwhile, called Portland “war-ravaged” by persistent protests carried out by “domestic terrorists” at the local U.S. Immigration and Customs Enforcement facility. Days after he made those statements while federalizing the guardsmen, he suggested to senior military leaders that armed forces could use American cities “as training grounds.”
U.S. District Court Judge Karin Immergut will decide between the two sides’ contrasting portraits. On Friday, the judge — who was appointed by Trump in 2019 — will consider a narrow part of the larger case: whether to temporarily block the president from deploying the troops. However she rules, the broader lawsuit filed Sunday by the city and state will continue to move forward — albeit on a slower track.
Immergut’s decision could be key to determining the legal limits constraining an administration intent on testing those boundaries, some legal experts interviewed by OPB believe.
“The administration is trying to see just how close it can get to the legal line without crossing it,” said Georgetown Law Professor Stephen Vladeck, who noted there is very little case law governing how far troops are allowed to go in U.S. cities.
Ahead of Friday’s hearing, Portland’s police and prosecutors have articulated in signed court declarations a view that local law enforcement is capable of reining in protesters when their actions fall outside protected speech.
Immigration enforcement agents and federal law enforcement leaders, on the other hand, describe in sworn statements a federal property under attack by “violent opportunists” who have thrown rocks and bricks and set fires.
Craig Dobson, an assistant chief with the Portland Police Bureau, stated the protests have been persistent, though never so out-of-control that local officers couldn’t respond.
“Portland is not under siege, war-ravaged, or otherwise a particularly violent or unruly major city,” Dobson wrote in a Sept. 28 signed declaration. “In fact, on any given weekend, the nightlife in Portland’s entertainment district has warranted greater PPB resources than the small, nightly protests in front of the ICE facility.”
The police bureau set up a dedicated team when the protests against Trump’s deportation plans started appearing regularly outside the ICE offices on South Macadam Avenue. The bureau made 25 arrests from June 11 to June 25, Dobson wrote. The protests receded enough, Dobson wrote, that police deactivated the dedicated team and made no further arrests until late September. The latest arrests by Portland police occurred when protests flared the same day Trump called-up the Oregon guard.
As of Thursday, roughly a dozen different officials have added their support to the state’s case.
Multnomah County District Attorney Nathan Vasquez, in his filing, touted his bona fides prosecuting public disorder and riots. Vasquez helped oversee local prosecutions related to the city’s 2020 protests, which lasted more than 100 days. Vasquez explained he’s vowed to prosecute anyone who engages in criminal conduct during large public demonstrations.
“I have closely monitored the situation at the S Macadam ICE facility this year and have not seen any activity that, in my professional opinion, is even close to beyond the capabilities of the Portland Police Bureau to manage,” the district attorney stated.
Cammilla Wamsley, a regional ICE supervisor, had a different take.
In her sworn statement, Wamsley said federal law enforcement made more than 20 arrests over roughly three weeks this summer, separate from arrests by local police. She said “criminal agitators” have been accused of breaking the building’s gates and windows, lighting fires, spray-painting security cameras, and shining lasers in officers’ eyes.
Across the country, Wamsley said, officers’ private information has been posted online and one ICE agent in Southern California was even allegedly followed home by activists. She stated the recent shooting at an ICE facility in Dallas, Texas, which killed two detainees and didn’t injure any officers, shows the military is needed in Portland.
“The presence of the National Guard will enable ICE to continue to carry out its congressionally mandated duties in the Portland area,” Wamsley argued. “It is the additional manpower and resources provided by these guards — indeed, their mere presence — that will provide safety to local federal facilities and ensure the safety of those enforcing federal laws in Portland.”
An increased federal response might have the opposite effect, however, Caroline Turco, a senior deputy city attorney, argued.
A surge of federal law enforcement by the Trump administration in 2020 only inflamed tensions, she wrote in a sworn statement referencing a report into the response to that year’s protests in Portland: “Almost overnight, the protests and riots, which had largely self-extinguished, reignited, and their focus shifted to federal buildings.”
What does the law say?
The presidency carries an undisputed — but not absolute — authority to federalize guard members, according to legal scholars. Oregon’s situation raises a number of questions that could further clarify those limitations.
Legal scholars say this White House is acclimating the public to a new normal, where military troops play a growing part in everyday American life.
“The Trump administration is very much trying to desensitize all of us to the presence of troops on our streets,” said Georgetown’s Vladeck, who studies federal courts, military justice and national security law.
Legal scholars say federal deployments have forced the public to reckon with questions they haven’t faced before about the military’s role in policing American cities.
Certain facts must be met to justify deployment, demonstrating an insurrection, an invasion by a foreign power or some other scenario in which federal law can’t be enforced.
“These are not carte blanche authorities to call up the National Guard and to federalize them and put them under the president’s chain of command based on any reason the president wants to,” said Rachel VanLandingham, a professor of law at Southwestern Law School in Los Angeles and a retired lieutenant colonel who spent 20 years in the U.S. Air Force.
VanLandingham believes it was unlawful for the Trump administration to federalize guard members in Oregon. The circumstances on the ground simply don’t support the use of that authority, she said.
“We do not have massive riots,” VanLandingham said. “We don’t have the inability of ICE agents to conduct their immigration enforcement actions. You have some graffiti on the side of immigration buildings. Graffiti — last time I checked — does not prevent ICE agents from performing their duties.”
From a legal perspective, the situation brewing in Portland, looks a lot like what played out in California, where in June President Trump deployed 700 U.S. Marines along with 4,000 federalized California National Guard members.
A federal appeals court blocked the initial legal challenge from the state and allowed the deployment itself to move forward.
As the California deployment stretched on, the military’s role began to resemble that of law enforcement. That prompted a federal judge to rule last month the Trump administration had violated the Posse Comitatus Act, which restricts the military from engaging in domestic law enforcement duties.
The U.S. Department of Justice has appealed the decision. Regardless, the federal judge’s ruling out of California is not binding in Oregon. To legal experts, the ruling in California suggests a small window where there’s a legally protected military function that may allow the troops to stand around federal buildings as a show of force.
“The big question in Portland is are the federalized National Guard units just defending federal property or are they out on the streets actually stopping people, arresting people searching them?” Vladeck said. “That’s where, at least so far, the legal lines have been drawn.”
Americans’ aversion to using the military for policing goes back to the way King George II ruled the colonists, which helped spark the Revolutionary War. Authoritarian leaders across the world often have turned to the military and used it against their own people to consolidate control and suppress civil rights.
“Even though it’s only 200 Oregon National Guard members, by federalizing them on facts that are not in existence,” VanLandingham said, “the president is chipping away at these longstanding understandings of how the military works in our constitutional democracy. And to me that’s very scary.”
Oregon saw this coming
It’s a scenario some state legislators sought to avert.
In June, as the Trump administration’s decision to deploy the National Guard to Los Angeles played out in the courts, Oregon lawmakers tried to take a proactive approach.
Lawmakers considered House Bill 3954 that would have clarified when the Guard could be deployed for federal services.
“There was a reason why we wanted that bill passed,” Rep. Paul Evans, a Democrat who served in the military, said Tuesday.
Had the measure passed, Evans believes, it would have either prevented what is playing out now in Oregon or it would at least have helped the state make its case in court. The bill would have clearly enumerated when the guard could be deployed for federal service in Oregon.
If mobilization, for example, compromised the guard’s ability to respond to a disaster in Oregon, such as wildfires or earthquakes, that deployment would not be permitted. The measure would have given the state more power over deployment, Evans said.
The measure ultimately failed in the Senate after a procedural maneuver by Republicans.
State Rep. Dacia Grayber, a Democrat, co-sponsored the bill and said she hopes lawmakers will bring it back in the coming legislative session.
“This federal administration will do anything, regardless of what laws are in place,” Grayber said. “We’re seeing that right now. But I think it would have at least been a speed bump.”
OPB’s Lauren Dake contributed reporting.
