Feds Remove Courthouse Fence After Refusing to Pay Portland Fines

Blast Zone No. 26011 - 0 Comments
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Category: Police - Federal
Current Office Address:
Federal Protective Service
David A. Hess Refuses to Pay Fines:

The federal government removed an eyesore erected to protect another eyesore in downtown Portland, Oregon today. The fence put in place around the Mark O. Hatfield United States Courthouse last July has finally been taken down. After repeatedly refusing to remove the fence, the City of Portland began steadily increasing fines for blocking a public easement. Those fines now amount to more than $3 million, but the feds are refusing to pay.

The video below shows the fence being removed earlier today, but we are not sure the exact reason or who removed it. One would think that the news would be interested in learning and reporting such things. We are hoping that the city grew a pair and had it removed over the feds' objection, but the likelihood of Ted Wheeler standing up to anyone in a meaningful way is practically zero. We think the feds probably took it down themselves thinking that they can hold their own at the courthouse without it. We can only hope that the people prove them wrong. Like we have said before, Timothy McVeigh should have parked there (https://copblaster.com/blast/3325/elias-fernleys-effort-to-bury-the-truth-about-timothy-mcveigh), but unfortunately he chose to park in Oklahoma City two years before the Mark O. Hatfield United States Eyesore was even built and so there it still stands.

That monstrosity is so important to the federal government that it is worth making the people think they are willing to pay $500 every 15 minutes to keep a fence around it. Make the people think that protesting outside it would be good for the city in the long run because it would cost the feds millions of dollars of fines just to keep the fence there. Now we have learned that Homeland Security has no intention of paying those fines. In a letter from Federal Protective Services Assistant Director David Alexander Hess to the Portland Bureau of Transportation (PBOT), Hess cites the Supremacy Clause of the United States Constitution and the Homeland Security Act as reasons why his agency cannot legally be fined by a state or local government. The Supremacy Clause says that federal law takes priority over all state and local laws, while the Homeland Security Act permits DHS to perform various law enforcement functions, but Hess does not explain how either specifically permit DHS to avoid paying fines for the fence. As far as we can tell, the Homeland Security Act does not prohibit state and local governments from fining DHS for performing functions authorized by the act. What he may have on the City of Portland is a lack of a specific waiver by Congress for the United States to be sued for things like the fence. Waivers of sovereign immunity are covered by the Federal Tort Claims Act (FTCA).

Under the FTCA the United States has agreed to be sued by for certain intentional acts by their employees. See 28 U.S.C. 2080(h):

"(h)Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, investigative or law enforcement officer means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law."

The only item on the above list that the city might be able to sue to United States for with regards to the fence fines would be interference with contract rights. Even that would be a bit of a stretch. The best argument the city could make would be that DHS intentionally installed the fence and kept it in place knowing that it was interfering with some contractual relationship that the city had. We certainly do not see non-payment of fines or blocking public easements to be something that the United States has waived sovereign immunity for. So, even though the City of Portland has every right under state and local law to bill them, they have no way to force them to actually pay those bills.

What should the city do?

The city should learn from this and plan to respond in an enforceable way next time the feds try to do something like this. That might involve fining any local company that builds anything for the federal government without also getting permission from local government. It would involve enacting an ordinance saying that any local person or business must get city approval before doing anything for the federal government in city limits or face a stiff fine. The city might also want to order the Portland Police to immediately stop any construction or other activities being conducted by anyone in the city on the federal government's behalf in violation of the ordinance. They also might want a mandate for removing things like that fence over the objections of federal law enforcement.

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