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.