Last year, the Federal Protective Service (FPS) experienced challenges protecting Federal property in Portland, Oregon and consequently requested assistance from Department of Homeland Security law enforcement officials.
DHS had the legal authority (under 40 U.S.C. § 1315) to designate and deploy law enforcement officers from U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), and United States Secret Service to help FPS protect Federal facilities. In July 2020, the Office of Inspector General (OIG) at DHS was requested to open investigations into the federal law enforcement response against protesters in Portland.
The demonstrators — a mix of peaceful protesters and those who have committed vandalism or thrown objects at officers — had been protesting for more than 50 days against the death of George Floyd at the hands of Minneapolis police officer Derek Chavin, who has since been convicted of Floyd’s murder. The federal response, including video of unidentified masked camouflaged federal officers pulling a protester into an unmarked van, resulted in growing protests and political outcry as agency leaders defended the officers’ actions.
In a letter to the OIGs of DHS and the Department of Justice, House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.), Homeland Security Committee Chairman Bennie Thompson (D-Miss.), and Oversight and Reform Committee Chairwoman Carolyn Maloney (D-N.Y.) wrote that “the legal basis for this use of force has never been explained — and, frankly, it is not at all clear that the Attorney General and the Acting Secretary are authorized to deploy federal law enforcement officers in this manner.”
OIG has now reported its findings and says DHS was unprepared to effectively execute cross-component activities to protect Federal facilities when component law enforcement officers first deployed on June 4, 2020. Specifically, OIG found that not all officers completed required training; had the necessary equipment; and used consistent uniforms, devices, and operational tactics when responding to the events in Portland.
The watchdog determined that this occurred because DHS did not have a comprehensive strategy that addressed the potential for limited state and local law enforcement assistance, as well as cross-designation policies, processes, equipment, and training requirements.
DHS law enforcement operations in Portland were mainly focused on riot and crowd control activities. However, only about 10 percent of the officers OIG reviewed received riot and crowd control training.
OIG found DHS officers in Portland used less-lethal weapons, such as compressed air launchers, 40MM munition launchers, and Pepper Ball launchers, to help control crowds. Officers are required to complete an initial certification for each less-lethal device issued. All 63 officers OIG reviewed accomplished the less-lethal device training certification. However, annual recertification training requirements were inconsistent across the components and operational directorates.
Before they could execute 40 U.S.C. § 1315 authority, the Director of FPS required officers to receive a legal briefing on pertinent authorities and jurisdiction, including criminal statutory provisions enforceable on Federal property. FPS used a cross-designation roster to identify which officers completed the legal training. OIG compared FPS’ August 7, 2020 cross-designation roster of 4,574 trained officers to the 222 CBP, ICE, and Secret Service officers deployed to Portland as of that date. It determined 36 of the 222 officers did not appear on the cross-designation training roster prior to their deployment to Portland. The review also found that 14 of the 36 officers used less-lethal devices or munitions against a person while deployed in Portland.
It is also worth noting that OIG had previously reported concerns regarding DHS’ delegation of authority and that the Director of FPS did not properly identify DHS employees by name who could exercise authority under 40 U.S.C. § 1315. DHS did not concur with those recommendations and could therefore risk law enforcement officers acting outside the scope of their authority.
Officer safety was also subject to review and OIG found the DHS officers did not have the necessary equipment to protect themselves during riots and violent protests in Portland. During the riots and protests, DHS officers were attacked with lasers, fireworks, and Molotov cocktails and struck by projectiles including frozen liquids, unknown chemicals, feces, and rocks. However, some officers did not have shin guards, face shields, and protective eyewear when responding. From June 13, 2020 through July 30, 2020, DHS officers reported 689 injuries including eye irritation, blurred vision, and headaches caused by laser attacks; temporary hearing loss and headaches from fireworks and mortars; and wounds from projectiles.
Officers also told OIG that there were not enough less-lethal devices and munitions to respond effectively, and they reported problems with radio communications, such as the inability to communicate with DHS officers from other components.
Regarding the concern over uniforms, OIG said DHS officers deployed to protect Federal facilities in Portland did not wear consistent uniforms. Officers from FPS, CBP, and ICE all responded to Portland wearing their respective component-issued uniforms. The watchdog notes that wearing consistent uniforms would present a unified front, but acknowledged that all DHS law enforcement officers’ uniforms included “Police” markings, along with patches or badges identifying their component. In its review of DHS photos taken during operations in Portland and through interviews with officers, OIG found DHS officers complied with component uniform policies and their uniforms were appropriately marked per their respective component policies. The public and Congress also raised concerns about DHS officers’ use of camouflage uniforms. Due to public concern, some CBP Border Patrol officers transitioned from their camouflage uniforms to available alternative ones.
OIG also found that DHS was unprepared to execute cross-component activities in Portland and that neither DHS nor FPS have developed a written plan, policy, or process to ensure a coordinated, multi-component response to civil disturbance at Federal facilities. OIG recommends that DHS develop such a plan in cooperation with FPS. DHS concurred and said FPS will develop governance documents and processes for a comprehensive, cohesive, and transparent approach to civil disturbances at Federal facilities. These efforts will include finalizing a policy document for designating DHS component personnel under 40 U.S.C. § 1315 and verification of required legal training completion; completing a Public Order Policing directive reflecting multi-component support; additional training; procurement of equipment; and sharing this policy document with other DHS operational components. DHS expects this to be complete by June 30, 2022.
In addition, OIG recommended that FPS establish contingency plans, including necessary equipment, for responding to civil disturbance at high-risk Federal facilities based on Facility Security Assessments, non-binding agreements with state and local law enforcement, and expected level of support. FPS concurred and will establish a contingency plan for responding to civil disturbances at high-risk Federal facilities by March 31, 2022.