Copyright The Oregonian
A closer review of Oregon U.S. District Judge Karin J. Immergut’s 106-page opinion — permanently halting the federal deployment of National Guard troops to Portland — reveals how she tore apart the testimony of a key Trump administration official who was called as a witness and largely dismissed Federal Protective Service officials’ complaints that Oregon’s sanctuary law have hamstrung local police. JUDGE ASSESSED CREDIBILITY OF WITNESSES The judge determined that the testimony of Cammilla Wamsley, the regional director of the U.S. Immigration and Customs Enforcement’s Seattle field office, was not credible. Immergut said she didn’t find Wamsley’s account of the damage done by protesters to the Portland ICE facility “reliable,” and she concluded that Wamsley’s testimony claiming that protesters breached the ICE building on June 14 and “had gotten into our lobby” was not backed by any evidence. Wamsley testified that she visited the building in July to “survey the damage,” and she said “all of the windows on the first floor and some on the second and third floors were broken,” that all the doors were broken and the steel gates were broken and inoperable. Immergut noted that there was “no credible evidence... that all the doors and windows of the ICE facility were broken. No other witness described damage to this degree, including (Federal Protective Service) Commander W.T. (Will Turner), who was at the Portland ICE Facility every other week the entire summer.” Wamsley also testified that she did not know whether there were any photos of the damage or whether there was any documentation of the repair estimates, and her agency’s internal records mentioned only one broken door and two broken windows prior to Wamsley’s arrival at the ICE Facility, the judge wrote. Just as Immergut found Wamsley’s characterization of the extent of damage to the building unreliable, she said she “extends that finding to Director Wamsley’s testimony on breach of the facility because it is inconsistent with every other piece of evidence received on the subject.” “The Court therefore finds that protesters never breached the ICE facility,” the judge wrote. Testimony about injuries to officers also lacked corroborating photos or videos, the judge also noted. DISMISSED FED’S CHARACTERIZATION OF PORTLAND POLICE Immergut, a former prosecutor who was elevated to the federal bench by Trump in 2019, pointed out that the federal officers and Portland police “hotly contested” the extent to which Portland police responded to criminal conduct outside the ICE building. The federal officers who testified argued that the Portland Police Bureau’s adherence to Oregon’s sanctuary law “hamstrung” their ability to execute law amid the nightly protests. Immergut wasn’t convinced. “The trial evidence demonstrated just the opposite,” she wrote. While the federal officers testified that they would call Portland police to report problems outside the building and that they wouldn’t respond, the judge gave more weight to the testimony of Portland police supervisors, including Cmdr. Franz Schoening, Assistant Chief Craig Dobson and Central Precinct Cmdr. Brian Hughes. Immergut found that Schoening’s “demeanor and testimony’’ at trial to be “highly credible,” and she said she “afforded it great weight.” The judge concluded that the Police Bureau established policies “that allowed them to be a helpful partner in addressing crime that occurred at the protests, and sought to maintain an “open line of communication with federal law enforcement and consistently responded to requests for assistance” when resources permitted. While it was true that Portland police, concerned about violating Oregon’s sanctuary law, declined to help clear the street in front of the driveway of the ICE facility and would not clear debris protesters left in the driveway of the building, “such inaction” by the bureau was “at most minimal interference with the execution of (federal) laws,” the judge found. In a footnote, Immergut wrote that the “occasional friction” between the Police Bureau and federal officers due to Oregon’s sanctuary law was a far cry from the Civil Rights era examples of deployment of the National Guard in response to “state defiance” of federal Civil Rights laws. She quoted 9th U.S. Circuit Circuit of Appeals Judge Marsha S. Berzon in the California National Guard case, who described how former Presidents Dwight D. Eisenhower, John F. Kennedy and Lyndon B. Johnson federalized the Guard during the Civil Rights era when state law enforcement made clear they would not enforce federal orders and openly tried to prevent enforcement. Johnson federalized the Alabama National Guard to protect civil rights protesters marching from Selma to Montgomery from violent mobs. Kennedy federalized the Alabama National Guard after Governor George Wallace used the state’s National Guard to prevent integration of public schools, again in violation of federal court orders mandating desegregation. Several years earlier, Eisenhower federalized the Arkansas National Guard and ordered them to stand down after the Arkansas governor had used the state National Guard to prevent desegregation following the landmark Brown v. Board of Education ruling. Although those deployments occurred under the Insurrection Act, the federalization of the National Guard was necessary to execute federal law, Berzon wrote. The Portland Police Bureau’s “failure to clear debris does not approach this level of obstruction,” Immergut wrote in her ruling. DEFINED REBELLION In evaluating the federal government’s argument that there was a “threat of rebellion” in Portland, one of the criteria for Trump invoking the federal code’s Title 10, Sec. 12406, to mobilize the Guard, Immergut noted that what constitutes such a threat is not defined in the statute. She sought to determine its “ordinary, contemporary, common meaning . . . at the time Congress enacted the statute,” her ruling said. She concluded that a rebellion is something more than “mere shows of discontent with law, policy or government,” and concluded that it’s an “organized group engaged in sustained, armed hostilities for the purpose of overtaking an instrumentality of government by unlawful or antidemocratic means.” She cited as an example the Whiskey Rebellion, which was the “[s]ingle largest example of armed resistance to a law of the United States between the ratification of the Constitution and the Civil War.” It occurred in opposition to a federal whiskey tax imposed in the wake of the Revolutionary War and caused violence in western Pennsylvania, making it impossible for excise officers to collect taxes. Then-President George Washington called up the militia – equivalent to today’s National Guard – when 7,000 to 15,000 armed men gathered to resist the law, her opinion said. She also mentioned Shay’s Rebellion of 1786, when the governor of Massachusetts called in the militia to quell mob violence by about 15,000 armed farmers and Revolutionary War veterans who were upset at the state government’s failure to provide debt relief. “Founding-era Presidents did not call forth the National Guard because the tax rebellions were violent protests against one federal law. They called forth the National Guard because the tax rebellions were sustained, organized, armed hostilities aimed at — and capable of — overthrowing the new Government,” Immergut wrote. In stark contrast, the most significant violence outside Portland’s ICE facility occurred on June 14 when Portland police declared a riot. “Unlike the historical rebellions where the President federalized the National Guard, local and federal law enforcement quelled the violence of mid-June,” Immergut ruled. Immergut did not delve into the definition of “regular forces,” also part of Sec. 12406 that Trump invoked to mobilize the Guard, contending he “is unable with the regular forces to execute the laws of the United States.” She said she’s bound by the 9th Circuit, which referred to “regular forces,” as federal law enforcement, as the U.S. Justice Department has argued. In a parallel federal case in Illinois, a district judge in Chicago, she noted, provided a “compelling reason” why the phrase at the time of the law’s adoption referred to “soldiers and officers regularly” enlisted in the military. Immergut said said she did not need to resolve the dispute, noting it’s now before the Supreme Court.
