Can Portland Really Collect The Running Fine On The Federal Government? Probably Not.

The fence (which is being rented by the government for six months at the cost of $208,400) blocks a bike lane and sits on what the city claims to be municipal property.

Eudaly refers to the federal officers as “federal occupiers” and, like many Portland politicians, has called on citizens to fight “federal occupation.”

The question is why she does not just remove the fence if she believes that she has the authority, particularly during the day when there have not been riots.  She has suggested that she fears for the lives of the crews, presumably from the federal government:

“Last Wednesday, I introduced two resolutions that were passed unanimously by City Council. One to stop the Portland Police Bureau from cooperating with the federal occupiers, and another to affirm the rights of members of the press and legal observers. On Thursday, I directed the Portland Bureau of Transportation (PBOT) to enforce on the federal occupiers for erecting a fence in our public right of way. PBOT filed a cease and desist demand on behalf of the City—we have not received a response. We are assessing the maximum fine of $500 for every 15 minutes the fence obstructs our street, and we are investigating other legal remedies available to us. Typically, we would send a maintenance crew or contractor to remove such an obstruction, but I will not send workers into harm’s way. Yes, I am afraid to direct workers to do their job and enforce our laws against the federal government—I hope that gives everyone reading this pause. As of yesterday, the federal government owes us $192,000 and counting. We intend to collect.”

Then there is the curious failure to get a court order. The most effective way to remove a federal fence that has been improperly constructed is to go to court.  The federal government would then be able to contest the order and the matter settled by court order.  Of course, if the city wins, Eudaly and her colleagues would have to be responsible for what comes next.  If the rioters can get close to the building, fires can be set more easily and direct (and potentially lethal) confrontations will occur.  Eudaly will only say that she is investigating “other legal remedies.”  Not much investigation needed. You file in a court.  The court hears your argument.  The court rules.  Done.

I am not sure of what other remedies are available. It makes this sound more homeopathic than legal.

Now back to that fine.

It is doubtful that such a fine would work.  It is true that the federal government has waived sovereign immunity in laws like the Federal Tort Claims Act and, since 1976, you can sue the government for damages. However, 5 U.S.C. § 702 says that you seek “relief other than money damages.”  Portland could argue that these are not money damages but a running daily fine. Moreover, it could argue that injunctions are allowed under federal law and such fines can be part of injunctions.

Yet, in Lane v. Pena, 518 U.S. 187, 192 (1996). the Supreme Court held that “[a] waiver of [federal] sovereign immunity must be unequivocally expressed in statutory text” and that such waivers are to be strictly construed in favor of the government.  The same is true for punitive damages.  U.S. Department of Energy v. Ohio, 503 U.S. 607, 628 (1992).   In cases like Bowen v. Massachusetts, 487 U.S. 879 (1988). the Supreme Court allowed monetary fines because they were part of a specific statutory scheme approved by Congress under the Medicaid statute.

In addition, the federal government routinely cuts off roads and spaces controlled by city or state governments to address imminent risks or dangers, including dealing with crime scenes.  It is certainly true that this could go on for months, but the rioting is occurring on a daily basis and dozens of federal officers have been injured including some seriously.

Even if a plausible argument could be made for a running fine, it would take years to collect and the federal government could turn around and seek to reduce the federal support to the city by the same amount.

If Portland is serious about removing the fence, it should try to remove it.  The federal government would then go to court to enjoin the action.  Conversely, Portland could go to court.  Of course, such actions are only likely if the city politicians really want to remove the fence, which is doubtful.  The removal of the fence would be precisely what extreme groups like Antifa have been trying to accomplish with saws and torches.  A close confrontation with federal officers could escalate the use for force from nonlethal to lethal means.

Thus, the running fine has greater political than coercive effect for Portland politicians.  Much like the graffiti covering the courthouse, it is a poignant but not indelible statement.

56 thoughts on “Can Portland Really Collect The Running Fine On The Federal Government? Probably Not.”

  1. Perhaps Federalization’s being done In the wrong way. It’s easy, however, to detect that the violent protesters share a common goal with Portland and Oregon’s local officials – obstruction of the administration of Federal government. That makes the protesters and local officials potentially a Racketeer-Influenced Corrupt Organization. The Federal RICO Statute could be used to exact both civil and criminal penalties from local governent and violent protesters, just as the Key West and Los Angeles police departments were Federally charged.

  2. Maybe the federal government should take this building down and move it piece by piece to another location.

  3. Jonathan: The City of Portland may have a hard time collecting fines against the federal government but your entire post is a distraction. All of this would have been unnecessary had Trump and Barr not sent federal officers into the city in the first place. They were uninvited by state and local officials. Trump/Barr claim this action was necessary to “protect” federal property. But the stormtroopers who invaded Portland roamed many blocks from federal property snatching innocent protesters from the street without probable cause, transporting them to jail but then releasing them the next day without charges. What about the “free speech” ( a subject you often write about) rights of the protesters and violations of their 4th Amendment rights? Ironically, just days before Trump/Barr sent federal troops into Portland the number of protesters had dwindled. Only after federal officers come in did the protests increase dramatically. Trump/Barr made things worse. The whole purpose of this exercise was not to “protect federal property” but to show Trump is “tough on crime” and to scare the hell out of urban voters –to show that Trump is the only person standing between them and “anarchy”.

    Speaking of your good friend William Barr he is such a divisive figure that 80% of the law faculty at George Washington University, where Barr is an alumnus and where you teach, wrote a letter last month saying in part: “His (Barr’s) actions have posed, and continue to create a clear and present danger to the even-handed administration of justice, to civil liberties, and to the constitutional order”. You were one of very few who refused to sign the letter saying: ” the letter makes a number of legal statements that I believe are contested, unestablished , or mistaken” How so you don’t say. Now standing up for Barr requires a lot of loyalty. Unfortunately, personal and unquestioned loyalty has obscured your ability to face reality and the consequences–that Barr has put HIS personal political loyalty to Trump ahead of the fair administration of justice.

    1. Dennis McIntyre – what is interesting is the number of out of state people who are coming to Portland and Seattle to demonstrate. We just had BLM demonstrate at our university town with one officer injured and seven arrested.

  4. OT – Biden Considering Antagonist Enemy, Kamala Harris, For VP

    WILMINGTON, Del. (AP) — Joe Biden confirmed Tuesday that he would announce his pick for vice president next week. And the presumptive Democratic presidential nominee seemed prepared to talk about at least one leading contender: California Sen. Kamala Harris.

    As he took questions from reporters on Tuesday, Biden held notes that were captured by an Associated Press photographer. Harris’ name was scrawled across the top, followed by five talking points.

    1. “Do not hold grudges.”

    The debate-stage skirmish was one of the seminal moments of the Democratic primary. Harris, who is Black, said Biden made “very hurtful” comments about his past work with segregationist senators before she slammed his opposition to busing as schools began to integrate.

  5. The only way the citizens of these states and communities will recognize who is responsible for the breakdown of law and order is to remove the federal presence, including funding. If the violence stops and they are able to restore the peace, then conservatives win on the grounds of federalism and the 10th amendment. If the violence doesn”t stop and order breaks down further, conservatives win by demonstrating the utter incompetence of the leadership in those states and communities.

    1. Olly – I hadn’t thought of it that way. I am tempted by the suggestion, but wonder what would happen if the federal building is destroyed. Could the federal government then sue the state of OR for its actions that enabled the destruction of federal property?

      1. The federal building is, for all practical purposes, already destroyed. The anarchists just haven’t gained access to finish the job from the inside. I don’t know if they would need to sue, or just withhold funding for any number of functions that have relied on it. Consider states like Oregon as a laboratory of democracy and let’s see how well they can function without the federal, administrative state. Personally, I would like to see it succeed as long as the rights of all their citizens are secure. Imagine the collective shock to the progressives when they discover the Frankenstein bureaucracy they’ve been building for 100 years was dismantled by their own doing. :0)

    2. So far it’s been the opposite. Let them reap what they sow. Starting with the neo fascist city and state governments. Why should the rest of the country have to pay for the crimes of the sociaiist parties?

      1. Let them reap what they sow. Starting with the neo fascist city and state governments. Why should the rest of the country have to pay for the crimes of the sociaiist parties?

        As tempting as that is, containing this marxist/socialist cancer is nearly impossible. It’s already metastasizing to other areas of the country, aided and abetted by the Democratic party. So far there are states remaining unaffected, but should the Democrats succeed in electing an empty suit as President and get a majority in the Senate, that will be the end of it. Start looking for a country to quietly retire to or stay and fight our next civil war.

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