No, Proactive Arrests Are Not A Thing! – Above the Law

There is no such thing as a proactive arrest. There is no such thing as a noncustodial arrest where an individual is transported to another location and detained. There is no such thing as probable cause because a person was standing in a group of several hundred people, five or six of whom are suspected of committing a crime.

That is not how any of this works!

And yet heres Chad Wolf, our acting Secretary of the Department of Homeland Security, explaining to Fox News that his agents simply have to snatch random black-clad kids off the streets of Portland because those mean Democratic mayors wont welcome his storm troopers into their cities with open arms.

The Department, because we dont have that local law enforcement support, we are having to go out and proactively arrest individuals. And we need to do that because we need to hold them accountable. This idea that they can attack federal property and law enforcement officers and go to the other side of the street and say, you cant touch me, is ridiculous.

Wolf, who has no law enforcement or legal background and made his name championing DHSs family separation policy, has consistently described large crowds of overwhelmingly peaceful protestors as violent anarchists. Which is handy wordsmithing, since it recasts the demand that police stop killing black people as a call to overthrow the government, while simultaneously imputing criminality to thousands of people at once to justify proactive arrests. Whatever those are.

Theres no evidence that these yellow-shirted moms were participating in any illegal activity at all, but that didnt stop Wolfs stormtroopers beating and gassing them like everyone else last night.

Wolf continued to misunderstand basic tenets of American criminal law at a DHS press conference yesterday. When asked by a reporter about people getting snatched off the streets and thrown into vans for questioning What exactly is the standard of probable cause you are getting, and how is that not a violation of civil liberties? Wolf again garbled the legal underpinnings of his argument with vague assertions of group criminality.

This is a very difficult environment to work in. You have 500, 600 violent individuals, violent criminals across the streets that try to inflict harm on your property and law enforcement officers. We do our best to identify who they are using probable cause. What we dont do is we dont go into the crowd. We dont try to go into a violent crowd of 400 people to arrest people.

Probable cause is a means of identification? Umm, okay.

Then Wolf turned the microphone over to his deputy Kris Cline, head of the Federal Protection Service, to take another stab at it. Cline started off strong, noting that agents have the right to investigate crimes on or against federal property. But he ran into some trouble when defending the widely disseminated video of his agents jumping out of a van and grabbing up a black-clad kid off the street.

The individual they were questioning was in a crowd and an area where an individual was aiming a laser at the eyes of officers.

So just on the face of it, that does not sound like facts and circumstances within the police officers knowledge would lead a reasonable person to believe that the suspect has committed, is committing, or is about to commit a crime. As Harvard Law professor Andrew Crespo pointed out in an excellent Twitter thread last night, guilt by association is reallynot a thing in American law.

Clines description doesnt even sound like reasonable suspicion that the individual was involved in criminal activity such as would justify a brief, non-consensual detention. In fact, it sounds like just the type of heavy-handed, extra-legal policing that brought thousands of people out onto the streets of Portland for the past 54 nights. But go on, sir!

In this instance, the CPB officers approached him. And you saw the approach, it was peaceful, there is no tackle, no get on the ground, they wanted to talk to him.

In fact, we did see the approach, and that is definitely not how we would describe it. We would describe it as unmarked agents who wordlessly grabbed this guy off the street without identifying themselves, much less announcing their intention to question him. As for Clines assertion that they asked the individual to please get in the van, well, he seems to be, ummm,mistaken about that.

They did take him to an area that was safe for both the officers and the individual to do the questioning, Cline continued. So, its not a custodial arrest.

As we pointed out last week and Professor Crespo noted last night, this is the very definition of a custodial arrest, so cleanly within the margins that it could be lifted from a criminal law exam. He was detained, transported to another location without his consent, he was not free to leave, and he was questioned about criminal activity. And if the guys in charge of those shock troops unleashed on Americas streets dont understand the basics of WHAT IS ARREST, then theyre in no position to guarantee that the First, Fourth, and Fifth Amendment rights of US citizens are being protected.

Nonetheless, Wolf bridles at criticism that his troops trample civil liberties and needlessly inflame an already tense situation.

These police officers are not storm troopers. They are not the Gestapo, as some have described them, he huffed indignantly. That script is offensive, hyperbolic, and dishonest.

You can tell DHS and the FPS arent Gestapo stormtroopers by how often they feel the need to deny it.

Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.