California Law Review Online (October 2020)
The Trump Administration recently deployed federal agents to Portland, Oregon in response to ongoing protests. Notably, these agents wore camouflage and drove unmarked cars instead of uniforms and vehicles that would clearly identify their agency affiliation and whose authority they act under. The administration also deployed officers in riot gear lacking agency identification to the nation’s capital in June.
Critics argue that these actions represent authoritarian tactics, encourage the use excessive force, and overstep the statutory and constitutional powers of the federal government. They sparked another wave of protests in response throughout the country. Here, I want to sketch an argument relating to the recent events in Portland that is different from those criticisms in two ways. First, it situates these actions in relation to the anti-commandeering doctrine, a legal consideration that has received little attention in this context. Second, it focuses squarely on the fact that these federal agents did not make their affiliation plain. If, for instance, federal law enforcement used excessive force in Portland, that would be unlawful regardless of what uniforms they wore or their identifying markings. Here I want to concentrate on the distinct issue of these federal agents being “unmarked,” and the ways in which these unmarked agents challenge the policy of government accountability that is the basis of the anti-commandeering doctrine.
Almendares, Nicholas, "Unmarked Agents, Accountability, and the Anti-Commandeering Doctrine" (2020). Articles by Maurer Faculty. 2933.