Sen. Bob Casey said federal agents ‘kidnapped’ protesters in Portland. Is that true?

When President Donald Trump threatened to send federal agents to Philadelphia, Casey accused the officers in Portland of “kidnapping and holding citizens without charges.” We fact-check him.

A Department of Homeland Security officer stands watch as fellow officers extinguish a fire lit by protesters behind the Mark O. Hatfield United States Courthouse in Portland, Ore., on Sunday.Read moreNoah Berger / AP

by Jessica Calefati

Updated Aug. 3, 2020, 9:21 p.m. ET

Published Aug. 3, 2020, 5:27 p.m. ET

Says federal agents in Portland have been “kidnapping and holding citizens without charges.”

U.S. Sen. Bob Casey, in an interview July 21

Democrats and civil libertarians have decried the Trump administration’s response to unrest in Portland, Ore., in recent weeks. Federal agents have been criticized for beating and pepper-spraying a peaceful Navy veteran and shooting another man in the face with a nonlethal munition, fracturing his skull.

When President Donald Trump threatened to send federal agents to Philadelphia, Sen. Bob Casey (D., Pa.) accused the officers in Portland of “kidnapping and holding citizens without charges.”

We wondered whether Casey’s description was accurate.

Our analysis of this claim focuses on two detentions. A federal judge ruled one of them was unconstitutional, and a Trump administration official said agents lacked probable cause for the second. Legal experts say those seizures meet the common language definition of kidnapping, even as they stressed that the officers involved would never be charged.

Federal agents don’t typically patrol American cities. But in late June, Trump signed an executive order directing federal law enforcement agencies to send personnel to cities where monuments had become focal points for protests against systemic racism and police violence.

A few days later, Homeland Security agents from Customs and Border Protection and Immigration and Customs Enforcement — who didn’t have proper training in riot control or mass demonstrations — arrived in Portland to support officers of the Federal Protective Service, the division responsible for protecting federal buildings such as the city’s Mark O. Hatfield courthouse, which had been vandalized.

When Casey said protesters had been kidnapped, he was relying on news reports and legal documents that described two protesters who were picked up under “irregular” circumstances early July 15, said Natalie Adams, Casey’s spokesperson.

One is Mark Pettibone, who said he was seized near the courthouse by a group of armed agents traveling in an unmarked minivan. Pettibone told Oregon Public Broadcasting that as the van drove off, officers covered his eyes and restrained his hands.

Pettibone said he was taken to a building he later learned was the federal courthouse, loaded into a cell, and read his Miranda rights. He was patted down and photographed, and his belongings were searched. Officers didn’t tell him why he was being arrested, he said, and when he declined to answer questions without a lawyer, he was released without any record of an arrest.

The details are outlined in a sworn statement and were corroborated by Connor O’Shea, a friend who was walking with Pettibone moments before he was picked up.

The other incident was captured in a now-viral video. It shows a team of agents dressed in combat gear surrounding a peaceful protester, removing him from the street, and carrying him away in an unmarked van — just like Pettibone. The protester in the video hasn’t been identified.

Legal experts said neither of these arrests was lawful because the officers lacked probable cause.

When Oregon Attorney General Ellen Rosenblum sued the Trump administration, she argued that the agents who snatched Pettibone violated his Fourth and Fifth Amendments rights and that his detention constituted “an unreasonable seizure.” Michael Mosman, the federal judge who ruled on the case, agreed.

Mosman wrote: “There is no video of this arrest and no evidence relating to its legality other than Mr. Pettibone’s sworn statements. Defendants have not refuted the state’s allegation that Mr. Pettibone’s seizure lacked probable cause. I therefore assume, only for the purposes of this opinion, that this seizure was unlawful and constituted a violation of Mr. Pettibone’s rights under the Fourth and Fifth Amendments.”

Regarding the arrest depicted in the video, Mosman added:

“The video shows the seizure but does not show any context for what preceded it. It therefore does not speak to probable cause one way or another because it is equally plausible that the individual was an innocent bystander or that he had committed some criminal act just before officers seized him.”

But when a Trump administration official was asked to describe the probable cause, he admitted the officers had none. Rather, the agents wanted to question the man about a crime he might have observed — and believed they needed to move him to do so safely.

Richard “Kris” Cline, deputy director of the Federal Protective Service, said at a news conference that as agents approached the man, “they noticed that coming in their direction were violent demonstrators.” This necessitated moving the man “to an area that was safe for both the officers and the individual,” Cline said.

Cline went on to argue that the officers’ conduct was lawful because it was not actually an arrest, but rather a stop, which does not require probable cause.

Cline is wrong.

Forty years ago, the Supreme Court ruled in Dunaway v. New York that taking a suspect into custody, transporting him to a new location, and detaining him for questioning is “indistinguishable from a traditional arrest.” And for such an arrest to be lawful, probable cause is required.

The court drew similar conclusions in Davis v. Mississippi and Hayes v. Florida.

Harvard Law professor Andrew Crespo described the case law this way:

“Any one of these cases, standing alone, resolves the question at hand. Taken together, the conclusion is inescapable: When the agents put the man in the van, took him off the street, and brought him inside for questioning, they arrested him. Cline says they did so without probable cause. That means they violated the Constitution.”

So, can these two incidents be considered kidnapping?

Rosenblum used the word kidnap in her petition for an injunction against future arrests involving protesters.

“Ordinarily, a person exercising his right to walk through the streets of Portland who is confronted by anonymous men in military-type fatigues and ordered into an unmarked van can reasonably assume that he is being kidnapped and is the victim of a crime,” Rosenblum wrote.

Some legal experts didn’t hesitate when asked if what happened was kidnapping.

“Apprehending a person by force and holding him or her in captivity without legal authority is the definition of kidnapping,” said Erwin Chemerinsky, a constitutional law expert and the dean at Berkeley Law. “That is exactly what was done to some who were apprehended in Portland.”

Former federal prosecutor Ken White said calling the detentions kidnapping is a mostly rhetorical question rather than a legal one because it’s unlikely the agents responsible would ever be charged. But he didn’t dispute that some elements of the crime of kidnapping match what happened.

“The arrest could certainly be unlawful and in violation of the Fourth Amendment, which has consequences in any criminal case against the arrestee and potential civil consequences if the arrestee sues,” he said. “However, kidnapping is a different matter — that’s a criminal allegation against the cop.”

He continued: “The crime of kidnapping usually has an element of wrongful intent — so you’d have to prove not just that the arrest was unlawful, but that the cop knew and intended it to be unlawful, which is difficult.”

George Washington University Law’s Jonathan Turley said it was “reckless” for Casey to call the incidents kidnapping when the seizures were most likely false arrests, which can occur when an officer believes, even wrongly, that he had legal authority to detain someone.

Our ruling

Casey said federal agents in Portland have been “kidnapping and holding citizens without charges.” It’s clear from Mosman’s ruling and from Cline’s remarks that the two detentions in question were unconstitutional or false, and it’s not in dispute that the two men were briefly held without charges. The circumstances of these two detentions fit many elements of the crime of kidnapping. This is true even if the crime is never charged or proved beyond a reasonable doubt. For these reasons, we rate Casey’s claim Mostly True.