Oregon Governor Kate Brown has literally sold out the people of Portland to the federal government by allowing the Oregon State Police to be deputized by the United States Marshals. As Governor she has the authority to order the Oregon State Police (OSP) not to accept offers from the U.S. Marshals or other federal agencies to deputize them if they want to remain employed with the state. This essentially exposes every person in Portland to the possibility of facing federal charges based on their interactions with these federally deputized officers.
We last reported on the retreat of OSP from Portland as a bad thing for protesters because it increased their exposure to federal charges (https://copblaster.com/blast/25913/oregon-state-police-retreat-is-bad-news-for-protester-amnesty). Back then we reported that because OSP had taken over security around the federal courthouse for the Homeland Security "augmented" force that their presence was good for protesters because OSP could not charge protesters in federal court. When OSP withdrew, all protesters at the federal courthouse instantly became exposed to federal charges again. We believe this liability is a big reason why protesters have focused the bulk of their efforts to other parts of Portland with the lone notable exception being counter-protesters that showed up a couple weeks back to oppose a "patriot" rally organized by police supporters (https://copblaster.com/blast/25923/feds-out-in-force-in-downtown-portland-again). That change began right after OSP originally took over courthouse security, but even though their stated purpose in Portland was to guard the federal courthouse, OSP troopers would frequently join Portland Police at protests in other parts of the city. Despite that the retreat was still considered a bad thing because of how much worst the United States Sentencing Guidelines (USSG) are than the Oregon Sentencing Guidelines (OSG). OSP cited as reason for the retreat Multnomah County District Attorney Mike Schmidt's decision not to prosecute protesters for minor crimes (https://copblaster.com/blast/25907/mike-schmidts-amnesty-policy-shows-protests-are-working) and that same decision was cited by neighboring counties for not agreeing to send assistance on the grounds that they did not feel their officers would be safe due to a lack in deterrence against criminal behavior. Now DA Schmidt will have no say what people are charged with unless he chooses to file state charges in cases that the the U.S. Attorney's Office prosecutes. Charges can be brought in both courts without violating double jeopardy because the state and federal government are considered separate sovereignties. Now prosecuting decisions will be up to U.S. Attorney Billy J. Williams and his staff no matter where the OSP troopers encounter protesters.
Sending OSP back to Portland under contract with the U.S. Marshals is worse than anything that has happened to Portland all summer. It is worse than the death of Aaron Danielson a.k.a. Jay Bishop because the USSG guarantees that many lives will be ruined and possibly lost due to federal prosecutions alone. One reason is that most people don't know that any state or local law enforcement officer acting pursuant to a contract with the U.S. Marshals is considered a federal officer under federal law and anyone that resists or assaults them can be prosecuted federally under 18 U.S.C. 111. Inmates in local county jails on federal holds have found this out the hard way by assaulting corrections deputies, being charged in federal court, and often serving years in federal prison instead of weeks or months in local jails or state prisons due to severe disparities between the USSG and the OSG. The differences do not stop at just sentencing guideline disparities.
The Oregon Revised Statute (ORS) that prohibits assaulting a public safety officer (ORS 163.208) requires that "the person intentionally or knowingly causes physical injury to the other person" to be found guilty of a felony and anyone that attempts to injure an officer is guilty of just a misdemeanor (https://www.oregonlaws.org/ors/163.208). 18 U.S.C. 111 on the other hand only allows for a misdemeanor conviction in cases that don't involve physical contact or use of a weapon (https://caselaw.findlaw.com/us-9th-circuit/1182814.html), so anyone that assaults a federal officer and makes physical contact no matter how minor or uses a dangerous weapon is guilty of a felony. The founder of CopBlaster.com was convicted of a felony for assaulting a federal officer under 18 U.S.C. 111(a)(1) because he threw chips at a Multnomah County Sheriff's Office (MCSO) corrections deputy while he was at the Multnomah County Detention Center (MCDC) on a federal hold for violating a condition of his federal supervised release. He did not injure the deputy or use a weapon, but was found guilty of a felony because the chips made physical contact with the deputy and according to the plea agreement, that act intentionally placed the deputy in fear of bodily harm. He would have fought the charge had that been all he was charged with, but he was charged with causing bodily injury under 18 U.S.C. 111(a)(1)(b) due to several deputies falsely accusing him of punching, elbowing, and kicking them. He was offered the plea after spending over a year in pre-trial detention with no bail due to being charged with a violent offense and the alleged victims had not provided any proof of injury beyond claims of fleeting pain. According to Assistant United States Attorney (AUSA) Greg Nyhus, the definition of an injury under federal law includes "physical pain" and "any other injury to the body, no matter how temporary"(https://www.law.cornell.edu/uscode/text/18/1365). Oregon law on the other hand requires "impairment of physical condition or substantial pain" (https://www.oregonlaws.org/ors/161.015). The founder of Cop Blaster was also fortunate that his counsel retained a bruise expert that would have testified that had he struck the deputies hard enough to inflict pain at level of 6 on a 1-10 scale like they claimed it would have left at least one mark on one of them (no pictures were taken and no medical attention was sought). Had that not been the case then it would have been his word versus theirs and they could have convicted him. According to his own legal research it appears that the 9th Circuit only requires that the victim experienced pain at a level of 1 on a scale of 1-10 for a brief moment.
The statutory maximum for violating 18 U.S.C. 111(a)(1) as a misdemeanor is 1 year and as a felony is 5 years, but violating 18 U.S.C. 111(a)(1)(b) has maximum of 20 years. 18 U.S.C. 111(a)(1) is not considered a crime of violence however because the Supreme Court ruling in Johnson v. United States (https://harvardlawreview.org/2015/11/johnson-v-united-states/) requires that courts take a categorical approach to when determining if a crime constitutes a violent felony. That means that unless every violation of that statutes requires "the use, attempted use, or threatened use of physical force against the person or property of another" that the crime is not considered a violent felony even if it can be committed violently. 18 U.S.C. 111(a)(1) includes both misdemeanor and felonious conduct, and it can be committed by without using "physical force" because "physical force" is defined as "violent force i.e., force capable of causing physical pain or injury to another person" (https://www.law.cornell.edu/supct/html/08-6925.ZS.html), so it cannot be considered a violent felony under the categorical approach. 18 U.S.C. 111(b) is considered a violent felony because it always requires either an injury or an attempt to injure by using a dangerous weapon. This is very important because under the USSG anyone with two prior convictions in state or federal court for violent felonies is considered a career offender. That automatically requires that their criminal history be considered a category vi which is the most serious category. This can surprise people because someone that has been in and out of jail for property and minor drug crimes all of their life is not considered a career offender, but someone with just two violent felonies is a career offender just because their crimes were violent even if they were committed long ago and far apart. People that are considered career offenders will most likely get at least 15 years in federal prison for violating 18 U.S.C. 111(a)(1)(b) even if all they do is kick a deputized OSP trooper in the shin.
Antifa Will Be Targeted in Prison
Federal prisons are violent places where Anitfa types will most certainly be targeted with violence by the white supremacist inmates that control those prison yards. Sending them to prison is far more likely to lead to more death than we have seen so far in Portland. The best hope that anyone from Antifa has to stay safe in federal prison is to go to a protective custody (PC) yard unless the blacks are willing to let them roll with them. Problem is, a lot of Antifas are snitches (https://copblaster.com/blast/25927/snitches-from-both-sides-respond-to-fbi-snitching-form) that have no problem calling the cops on white supremacists, defend the tactic, and the blacks do not like snitches any more than the whites. We found ourselves in an online argument recently trying to explain this as a friendly warning for an Antifa who said to us:
"If Trump gets his second term, which is likely, there will probably be more and more Antifa until there is enough that there isn't a problem. But Also I might add that structuring the tactics of anti-fascist resistance to appeal to sh*thead white nationalists in prison, or anywhere, is absolutely the opposite of the point." - Spencer Thayer (https://www.facebook.com/copblaster/posts/1036496746811122)
The problem with Mr. Thayer's position is that his people will not be able to get numbers on the white supremacists on any yard that white supremacists control. The skinheads or independent whites that are also white supremacists run the whites on almost every yard in the federal system. The federal system is almost completely segregated. Whenever a rival gang member sets foot on a yard controlled by their rival they are killed or seriously injured. That is how gangs of all races keep their rivals from ever getting numbers and they would probably do the same thing to Antifa. What would happen is every time an Antifa walks onto a yard he will be violently attacked in front of staff by one or two white guys depending on how tough they think he might be. Whenever this happens they all go to the hole, the attackers are almost always sent back into general population unless they are sent to a different prison due to their classification points going up or they are transferred to a special management unit (SMU), and the one that is attacked almost always gets transferred unless he is dumb enough to try going back to general population, in which case the process is repeated until he is transferred. Mathematically speaking this means that Antifa is not capable of getting numbers on the skinheads anywhere. Antifa is also not on any known lists used by the Bureau of Prisons (BOP) for classification purposes. Some gangs like the Nortenos and the Aryan Brotherhood of Texas (ABT) are on lists so that known members are never put into general population on yards dominated by rivals such as the Surenos or the original Aryan Brotherhood of California (AB). The BOP does the same with the Surenos and the AB by not sending them to yards run by the Nortenos or ABT. That happens because the gangster code prohibits them from ever requesting PC status so the Special Investigative Services (SIS) add known members to lists and keep track of what gangs dominate which yards. For inmates to get sent to PC yards right away they usually need to have a history of major sex crimes or cooperating with the government in high profile cases. Everyone else has to either request PC status or get smashed off multiple yards before they are finally sent to a PC yard. Every transfer takes at least 6 months during which they are kept in the hole under 23 hour lockdown for their own safety. Is that worth being anti-fascist? They will say yes, but only because they have not been in a special housing unit (SHU) for any significant length of time. If they spent 18-24 months getting beat up and put in a cell 23 hour a day they would probably start saying "sieg heil" real quick, but by then it would be too late because they would already have a bad jacket for being Antifa, rats, or PC cases, so saying "sieg heil" would be pointless.
Just one death is not worth exposing the people of Portland to the liability of seeing every protester that makes physical contact with a deputized OSP trooper charged with a felony, it is not worth sending all of them to federal prison for at least a year each, and it certainly is not worth sending any of them with two violent priors to prison for over 15 years. Since most Anitfas are white sending them to federal prison has a high risk of death and serious bodily harm for them.
UPDATE: Protesters are also being charged with civil disorder for cases not involving federally deputized officers. We are currently looking into the legality of the federal disorder statute because typically there must be a nexus to interstate commerce for the feds to have jurisdiction over activities not on federal land. 18 U.S.C. 231 requires the civil disorder activity have a nexus to commerce (https://www.law.cornell.edu/uscode/text/18/231) but does not specify interstate commerce.
UPDATE: 18 U.S.C. 232 defines commerce in the context of 18 U.S.C. 231 as interstate commerce (https://www.law.cornell.edu/uscode/text/18/232).
UPDATE: According to Maxine Bernstein on Twitter the feds are saying that blocking the streets is the interstate commerce nexus https://twitter.com/maxoregonian/status/1301693855658459137 which shows that they are desperate to find excuses for charging people federally. The only way blocking traffic could impact interstate commerce would be by delaying commercial shipments to other states. Think about that for a second. By that logic anyone that intentionally blocks a vehicle that is en route to another state commits a federal crime depending on how they block that vehicle. Seriously?