Generally speaking, I enjoy reading court transcripts and court rulings. I am not a lawyer, but I do find the verbiage of adherence to sound laws of logic, notwithstanding indecipherable precedence, pleasing to my mind and reassuring in it’s bedrock stability.
I like it.
U.S. District Court Judge Michael Mosman’s 14-page, Opinion and Order, dismissing Oregon’s case to seek injunction against the Federal forces in Portland, is not that. For the most part, it’s not enjoyable; it’s confounding. It does, however, offer a long, amusing, deep-dive into employing logic into the nature of kidnapping in which the logical resolution, in this case, as represented by the Judge, I did find very pleasing, if not outright hilarious.
Oregon’s AG brought suit in order to win an injunction to force Federal forces to:
(1) a requirement that officers identify themselves and their agency before arresting or detaining any person.
(2) a requirement that officers explain to any person being seized that he or she is being arrested or detained.
(3) an enjoinder against arrests that lack probable cause.
Now, from the outset, we might have difficulty understanding why the State of Oregon needs an injunction to force Federal officers to follow the law. These are already laws in Oregon with slight exceptions, that do not however, become altered by the above reasonable requirements.
That being the case, let’s presume Oregon AG still needs to prove a blanket injunction supersedes the exceptions of the State and Federal forces separate governing principles when operating on the extremely limited federal property in Portland. In this light, according to Judge Mosman, the State fails miserably in their arguments. In this light, I do understand the Judge’s dismissal as the State offered extremely little in the way of evidence that proves the issues are ongoing, prevalent, and needing redress.
The fact is, the Judge never states he is having any issue with the tiny possible overlap of laws between State and the Fed. He never says there is anything amiss with the sought items in the suit. He merely dismisses the suit by picking apart the State’s standing. He merely dispenses with the fact that the Constitution *has been* violated. Shouldn’t he have, at the very least, admonished the Federal authorities and offered warning?
What I do not understand, where the confoundment lies, is the notion, as represented by the judge, that the State cannot represent its people in this case because it lacks standing. The judge presents his reasoning, grounded in case law with governing principles as to why that is so. This concept is not pleasing to me. The State is the people and the underpinnings of the precedence used to come to this conclusion points to what Judge Mosman said repeatedly in his opinion-
He doesn’t want this case. The case he wants is brought only by specific injured parties and he wants to see them seek damages. Or, he will accept a class action lawsuit brought by a collection of individuals, that shows a repeated, ongoing abuse. He wants a different case. Not this one.
What is further confounding to me, is the State’s response to this stance:
“While I respect Judge Mosman, I would ask this question: If the state of Oregon does not have standing to prevent this unconstitutional conduct by unidentified federal agents running roughshod over her citizens, who does? Individuals mistreated by these federal agents can sue for damages, but they can’t get a judge to restrain this unlawful conduct more generally. Today’s ruling suggests that there may be no recourse on behalf of our state, and if so that is extremely troubling.”
As I said, I am no lawyer, but the State has come to the same conclusion I have from reading Mosman’s opinion, particularly in the understanding of what type of case the judge would prefer to see. I am further perplexed, if the State needs to prove standing to represent its people, why was the state not prepared to prove standing on its citizen’s behalf? WHY.
Other states must take note of this. Please be fucking prepared next time.
Now, the really super irritating part of this decision. from the Judge’s opinion:
I therefore assume, only for purposes of this opinion, that this seizure was unlawful and constituted a violation of Mr. Pettibone’s rights under the Fourth and Fifth Amendments.
What I will do is assume without deciding that this seizure was constitutionally unreasonable, while stressing that this is not a legal ruling for purposes of future litigation in this case.
So the judge will state that the federal forces are *not* following the law as an aside that he finds interesting, but he will not force those federal agents to follow the law??? WTF is this. Because he doesn’t want to do this as an injunction, he wants a different case, in which forcing the Feds to follow the law is a secondary benefit to seeking damages or a class action lawsuit.
What this judge has made clear, is that there simply isn’t enough bad shit going down yet. The State only offered two instances in which the constitution was violated. Not enough. He needs more. The Federal court needs to see more unlawful activity before they will force components of the Federal government to follow the law.
Guess fucking what? This judge will get his wish, because that course, which was already set, is now duly noted by other State AGs. The State must wait until some unknown amount of constitutional rights are violated or enough people get seriously injured or killed, in order for the Feds to follow the law.
After several pages of logically dissecting the State’s case concerning a perceived, yet legal “kidnapping” and its propensity to spawn actual kidnappings:
“But if one is willing to go along with the State’s concerns about copycat kidnappers, it requires me to assume that such nefarious characters are willing to dress up like federal agents and willing to commit the very serious crime of kidnapping, but that they would blanch at the thought of identifying themselves as police. The requested remedy here is a linguistic Maginot line, of no use in the real world.”