"NEVER, EVER BE AFRAID TO MAKE SOME NOISE AND GET IN GOOD TROUBLE, NECESSARY TROUBLE."*
AN OPEN MEMORANDUM:
TO: THE HONORABLE ELLEN ROSENBLUM, ATTORNEY GENERAL OF THE STATE OF OREGON.
FROM: DENNIS J. WALL.
DATE: SUNDAY, JULY 19, 2020.
RE: WHETHER FEDERAL CUSTOMS AND BORDER PROTECTION ("CBP"), A UNIT OF THE DEPARTMENT OF HOMELAND SECURITY, HAS THE POWER OF ARREST ON THE STREETS OF PORTLAND, OREGON.
Unless and until determined to the contrary by a court of competent jurisdiction, the answer to the question posed above almost certainly seems to be "no," the CBP simply does not have the power of arrest on the streets of Portland, Oregon. No federal statute has ever conferred the power of arrest on the CBP other than to enforce the customs laws of the federal government.
It is settled in the Federal Circuit that includes Oregon, that customs agents are "not, like local or state police, general guardians of the public peace." Customs agents have "duties and powers" authorized by statutes: In the course of enforcing customs law, they are statutorily authorized to stop vehicles and board vessels, examine them, and make arrests. United States v. Jackson, 423 F.2d 506, 508 (9th Cir.), cert. denied, 400 U.S. 823, 91 S. Ct. 44 (1970).
The recent actions of federal agents on the streets of Portland, Oregon, as reported in the newspapers and other media, do not appear to fall within any of the statutory provisions under which the CBP has been given the power of arrest.
It is noteworthy, moreover, that even when customs agents are acting within their statutory authority, for example to in effect seize statutorily prohibited contraband, the only immunity conferred by statute from civil damages that has been found is when "as a result of such search if the officer or employee performed the search in good faith and used reasonable means while effectuating such search." 19 U.S.C.A. § 482(b).
This memorandum is concise and to the point, and the answer is not complicated. To say it again: Unless and until determined to the contrary by a court of competent jurisdiction, the answer to the question posed above almost certainly seems to be "no," the CBP simply does not have the power of arrest on the streets of Portland, Oregon.
No research into Oregon laws or into ordinances of Multnomah County or the City of Portland has been included in this research. This is a question of federal law only. Therefore, it has been addressed as such in this Memorandum, i.e., only federal law has been consulted in the preparation of this Memorandum.
Moreover, there is no charge for the preparation of this Memorandum. Use this research as you may be advised. "When you see something that is not right, not just, not fair, you have a moral obligation to say something. To do something."*Rep. John Lewis
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