Federal agents in Portland, Ore., must confine their law enforcement duties to the protection of federal assets and wear uniforms that identify them, Fox News senior judicial analyst Judge Andrew Napolitano told “Fox & Friends” on Tuesday.
“The federal government can use federal assets to protect federal property,” Napolitano said.
“Stated differently, the Department of Homeland Security can send police into Oregon to protect a federal courthouse in Oregon, use that as an example.”
He went on to say that the federal government cannot, however, enforce the general criminal law.
“They can’t supplement or replace the police,” Napolitano explained. “They can’t go throughout the streets and say, ‘Hey, you’re committing a crime. We’re going to arrest you.’”
“They certainly can’t do what they have been doing in Oregon, which is arresting people without a warrant and without probable cause, holding them for a few hours and then letting them go,” he went on to explain. “So they have to be restrained and they have to confine their activity to the federal property.”
Napolitano offered the legal perspective the morning after Portland moms and dads marched in droves, joining downtown protesters on the 54th night of demonstrations that later swelled overnight amid escalating tensions with feds in the city, according to multiple reports.
Portland has experienced weeks of unrest following the May 25 death of George Floyd and the city’s mayor repeatedly called on President Trump to remove federal agents sent there to disperse crowds and protect federal property.
Trump has insisted that federal troops are needed to protect government assets in the city. The city’s Democrat leadership has been criticized in its response. Daryl Turner, the head of the Portland Police Association, said Sunday, “The elected officials have condoned the destruction and chaos” in the city.
State Attorney General Ellen Rosenblum claimed in court papers that masked federal officers have arrested people on the street, far from the courthouse, with no probable cause and whisked them away in unmarked cars.
“Their law enforcement duties must absolutely be confined to the protection of federal assets, so says the Constitution, which leaves the general police power in the hands of the cities and states and not the federal government,” Napolitano said on Tuesday.
He also noted that federal agents “have to wear uniforms that identify them.”
“They can’t wear fatigues with a piece of tape that says ‘police.’ Why not? Because if you have an encounter with one of them, you are entitled to know the name of the human being with whom you are having an encounter,” Napolitano explained.
He added, “They can’t get in the slippery slope of gradually enforcing local law and gradually replacing police.”
“I understand the president’s motivation and I share some of it,” Napolitano said.
“Two of these cities, Seattle and Portland, are a mess, but they have chosen political leaders who want it to be a mess and the way to clean it up is through the political method not through the use of federal force.”
Fox News’ David Aaro and The Associated Press contributed to this report.