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.

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

    1. Gainesville hasn’t figured out that when you have cumulative date, the numbers actually don’t go down.

    2. You case numbers are bogus and everyone knows it.

      They are the number of people who have tested positive NOT the number of people who are infected.

      Just about every study has determined that the actual number of infections everywhere is between 10 and 20 times higher.

      The EU purportedly has just over half the cases the US has.
      But it has about 50K more deaths than the US has.

      Either the medical care is orders of magnitude better in the US than the EU, or the virus mutation attacking the EU is more virulent than the US, or the most likely answer – the number of cases is just wrong for the EU and the US.

      If the case numbers can not be trusted – what can be trusted ?

      Hospitalizations are more trustworthy – in general it is likely that people approximately equally unhealthy go to the hospital in most of the world, and that the hospitalizations are LOOSELY proportionate to actual cases accross the world.
      But hospitalizations lag about 4 days behind symptoms.

      Another even more trustworthy indicator is deaths. Barring significant differences in medical systems, it is likely that approximately the same proportion of people infected die in most countries.
      But deaths lag 10-20 days behind symptoms.

      Accross the US the number of deaths is flat – or MAYBE up a small amount consistent with reopening.
      They are NOT radically up the way positive tests are.

      BTW the hospitalizations continue to trend down.

      And right now Conneticutt, Hawaii, Guam, NJ and RI have the greatest 14 day percent increase in new cases.

      The top 5 places by number of new cases are FL, CA, GA, TX, and AZ. CA and GA are trending up – slightly. All the rest are trending DOWN, over the past 14 days.

      It is not perfectly clear yet, but it appears that whatever the cause of the recent spike in testing, that daily new positive tests have levels out.

      Absent another significant increase in the amount of testing – we will likely see a decline in new cases.

      Nearly all of this is consistent with the hypothesis that the spike in positive tests is due mostly to increase testing and to a much lessor extent is the increase due to reopening that was inevitable.

      I would further note that the states with the highest number of dead are
      NY, NJ, CA, MA, IL, PA

      And that the red state with the highest number of deaths has a population 10% larger than NY and a death rate slightly more than 1/5 NY.

      If you want to make this political – it remains a MASSIVE blue state failure.

      1. Barring significant differences in medical systems, it is likely that approximately the same proportion of people infected die in most countries.

        Depends on the composition of the infected population. The disaster in Lombardy was driven by hospital borne epidemics. That in New York and New Jersey by epidemics in nursing homes. We need to be taking measures to protect those over 60 and those over 50 with a high BMI. Fatal cases are rare in the rest of the population. The concern with the rest of the population is that medical systems not be overwhelmed, because you do have a certain number of hospitalizations with non-fatal cases. The schools should have re-opened once it was understood that hospitals were not being over-taxed; you just furlough employees in certain categories. Same deal in re post-secondary schools. Sweden was much more circumspect about lockdowns than the rest of western Europe. They’ve had a higher population mortality rate than Germany and the rest of Scandinavia, but not bad vis a vis western Europe as a whole.

        What’s happened in Florida, Texas, and Arizona is that the temporal distribution of deaths is different from that of New York and New Jersey. Instead of having a spike and decline, its hit a plateau in the sunbelt and you’ve had persistent daily mortality. We wont know for a while which locus will eventually see worse outcomes.

  1. In one of the few AG Barr got an answer in yesterday, Barr seems to think the fence is on federal land. The court case could be fun.

  2. The astounding part of this story is not so much the fine, but that the City of Portland would be so unsupportive of federal attempts to prevent the nightly attempts to burn the federal courthouse to the ground. They prohibited local police from coordinating with the federal protective detail, and now they are insisting that a fence installed for the protection of the federal officers inside and for the protection of the building itself be removed.

    Has the world gone mad?

    Part of me wants to say, close the damn courthouse (or let the rioters burn it down) and let Oregonians drive to California or to Washington State to make their court appearances.

    It’s simply insane.

    1. Since the Governor of Oregon is implicated in this, I’d say put the whole state under an interdict. They get no federal funding, no Social Security benefits, no Medicare, no tax refunds.

  3. “The question is whether a city can impose such a fine against the federal government.”

    No. The question is why the hell the city wants the fence removed in the first place.

    Are they trying to allow unfettered access to the courthouse to Antifa?!

    It’s like they’re living in some sort of cartoon world.

  4. I’m sure that gave the Trump administration a good laugh, why should they follow the law anyway, and why start now. On a side note, Any alleged protester was told in writing from the Feds, “Order setting conditions of release” that “Defendant may not attend any other protests, rallies, assemblies or public gathering in the state of Oregon”

      1. “So you’re Ok with this:”

        It’s counterproductive and dishonest to attribute a belief to someone when s/he didn’t say s/he believes it and hasn’t implied that s/he believes it.

        Ditto for “You’re definitely a sociopath, if not a full blown psychopath.”

    1. This is not about “following the law”.

      The constitution gives state and local government limited jurisdiction over the federal government.

      Put simply except when the federal government decides that state and local law applies to it, it doesn’t.

      We live in the United State of america, not the peoples republic of portland.

      BY LAW, the federal government does not answer to the states.

  5. Can’t the Feds arrest these mayors who facilitate BLM/Antifa terrorist riots? I mean, at some point it must be illegal to help them destroy cities. Not that anyone would ever dare hold a Democrat to account. But it would be interesting if we all had to play by the same rules for a change.

    1. Reckless Endangerment in Oregon is defined as:
      ORS 163.195 Recklessly endangering another person.
      (1) A person commits the crime of recklessly endangering another person if the person recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.
      How about we arrest the Mayor of Portland. His inaction in the face of rioting definitely “creates a substantial risk of serious injury to another person.”

      1. Just like the city of portland has limited ability to impose itself on the federal govenrment.

        The federal government can only enforce federal laws in portland.

        If you want to arrest the Mayor – what FEDERAL law is he violating ?

        Just because the left is bat $h!t crazy and wants to prettend they can make the law up as they go along – does not mean the rest of us should join them.

  6. Serious question. If the Federal Gov’t leaves, can they charge the city of Portland for the cost of any damages to the courthouse? Since police can no longer use non-lethal means, then pulling out may be the best choice and then charge Portland to rebuilt it when it eventually gets destroyed.

    1. I think just leave the shell and ruins permanently in place as a memorial to Progressive government. An eyesore for the greater good. It would be fun to watch them destroy that memorial. All they could do is add some finishing touches no matter how destructive. Maybe Portland doesn’t even need a federal court. Move it to Burn, Oregon.

  7. Obama famously said, “elections have consequences.” I think it is time to show Portland residents what that means. The feds should remove all files from the federal courthouse and other sensitive materials and then pull out and leave the city to descend further into chaos. We’ve seen what the children-leaders in Portland do when there is some federal presence holding the mob back; let’s see what happens when all of the adults leave the city.

    1. Honest– I was thinking along the same lines. The judges in that district court are likely leftist and should enjoy presiding in the smoking ruins of their policies.

      I have wondered about the federal tactics. Seems it would be better to block off all routes of escape, surround the rioters and then arrest everyone who failed to leave after warning. After a couple of big net arrests other rioters would always be looking over their shoulders for an escape route. They have been far too easy on these anarchists. Scoop them up, hold them someplace unpleasant, and get intelligence on who is behind this.

  8. The city officials are in conspiracy to deprive federal workers and citizens who go into the courthouse of their civil rights. Sue under 42 U.S.C. sections 1983, 1985 conspiracy and 1988 atty fees. File today and seek injunction and damages. The city is conspiring with the rock and Molotov cocktail throwers.

  9. Another indication, in case you needed one, that public officials in Portland are unfit to hold the jobs they do.

  10. I cannot understand what these people are thinking. Are they trying to do everything they can to drive businesses and residents out of the city? Who in their right mind would choose to stay in a place run by utter fools?

  11. Interesting legal question that would be fun to see in court though I suspect the city would lose. Could be Portland’s legal staff has already turned thumbs down on fighting it.

    Also an interesting social question: how did Portland end up with so many nuts in government?

    1. “Also an interesting social question: how did Portland end up with so many nuts in government?”

      Group think. Democracy needs competition, but that’s often lacking in American cities.

  12. “Then there is the curious failure to get a court order.”
    Not curious. In kabuki theater there are no courts.

    1. Didn’t I read recently…

      That one of Google’s Engineers got arrested in Portland rioting and yelling…
      Burn it all down?

      1. Yes, and I think the same sentiments in far more dangerous forms are part of Google culture.

  13. Would Portland be obligated to also make an effort to clear the blockages from the protesters, rioters, and cars parked to block the road at night?

  14. I’m hearing the same arguments from the racist politicians in Portland (yes, anti white racism is still racism) that were advanced by the racist secessionists in SC prior to their attack on federal troops at Fort Sumpter. It will end just as badly if not worse.

  15. Portland Mayor and Leaders are Radical Leftist and they have allowed this hate, demonstrations and etc. for years. They allow Antifa and others to control the streets and etc. They hate Trump and the Fed’s.

    The voters of Portland and Oregon elected these clowns and the Voters should experience what they elected.

    Mob rule must stop and yet the local Government refuses to stop them.

  16. Portland’s threat has the teeth of a dentureless centenarian and it’s going to end up paying for the fence rental + damage to the fence.

    Does anyone know what the stated goals of the ‘protests’ are (other than Trump’s removal)?

    1. The destruction of the United States. Seems like they are waging war on the United States of America. There’s a word for that. What is it again?


    3. Goal of the rioters is anarchy.. Their goal is to tear down ‘the system’ with the expectation that anything else will be better.

      Primary goal of the city politicians is the creation of propaganda that the federal gov’t (i.e., Trump) is a fascist organization impeding the freedoms of their peaceful citizenry. According to Jerry Nadler, this has been successful. Secondary goal of the city politicians is to keep the mob violence directed at the feds instead of themselves b/c they too are part of the ‘system’. Once the mob comes for the city leaders, the police will suddenly become necessary.

      They only thing, IMO, keeping this thing somewhat stable is the general inability of a large majority of the Portland cops to quit and find new jobs. So instead, the city leaders can treat them like dirt but call on them for their own self-interest when the time comes.

    4. THEY don’t even know what the goals are. Some of them still think this is about police brutality, or systemic racism, some think it’s about repelling the occupation of the federal government, some BLM activists are using it as a fundraiser, some demand the defunding of police, some want income inequality, some are calling for, “the abolition of not just the militarized police state but also the United States as we know it,” some are seeking to overthrow capitalism, and I bet some are out there because it’s fun and they get to put all that time wasted playing Cs-go into practice.

      It’s goal salad.

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