A 19-year-old woman with no weapons pepper-sprayed in the face. An elderly couple shoved to the ground. A canister of tear gas tossed into a crowd without warning.
The scenes from protest activity outside a U.S. Immigrations and Customs Enforcement facilities in south Portland have led Portland’s city attorney and the city’s police bureau to allege federal agents used excessive force — using force in ways Portland Police aren’t allowed to under both a 2014 settlement in a federal civil rights case and a spate of recent state laws passed after the 2020 racial justice protests.
But a late 19th-century constitutional interpretation giving federal agents broad authority has left the Portland Police Bureau and local district attorney saying they are effectively unable to enforce a growing call from Democrats nationwide that federal agents who run afoul of a state’s laws on force and policing should face charges and arrest.
Now, local law enforcement are facing heightened pressure from Oregon’s top Congressional lawmakers to begin the process of investigating alleged violations. In October, former House Speaker Nancy Pelosi, a Democrat from San Francisco, endorsed the idea in response to what she called “broad sweeps that target families and terrorize law-abiding residents.” Colorado state law enforcement on Thursday announced an investigation into a federal agent’s use of a chokehold outside an ICE facility.
“Donald Trump’s federal agents should know at all times they will be held legally accountable if they break the law in pursuit of their boss’ extralegal orders in Portland or anywhere else in America,” U.S Sen. Ron Wyden, D-Oregon, said in a statement. “So yes, any officer who’s sworn to uphold the law must in fact follow that oath to document illegalities they may witness.”
Hank Stern, a spokesperson for Wyden, confirmed the senator supports arrests. Spokespeople for both of Oregon’s U.S. senators and two Portland-area congresswomen told the Capital Chronicle they support the idea of using state and local law enforcement to hold federal agents accountable for violating Oregonians’ rights.
The calls followed Portland Police Commander Franz Schoening’s comments during last week’s trial on deploying National Guard troops to Portland. Schoening accused federal agents of using tear gas on a crowd without following Oregon law, which requires warnings or an “objectively reasonable” threat like bodily injury. The attorney of a U.S. citizen in Gresham who said ICE agents detained her for hours after photographing their vehicles last week has also sought inquiries into her case from the Oregon Department of Justice and the Multnomah County District Attorney.
Lawyers for the Oregon’s justice department have filed exhibits alleging excessive force by agents, including one August video showing a man tackled from behind and falling face first. The Trump administration, meanwhile, has accused the Portland police of discriminating against conservatives and failing to adequately support federal law enforcement.
Oregon Attorney General Dan Rayfield has already shown interest in charges for federal agents. His office is arguing at the 9th Circuit Court of Appeals against a federal Drug Enforcement Administration agent who blew past a stop sign driving 18 miles per hour, killing a Salem cyclist during a non-emergency surveillance operation.
“We are committed to using every tool we have to hold the federal government accountable when it oversteps or puts Oregonians’ rights at risk,” Rayfield said in a statement. “Sometimes that means thinking outside the box — using the law in innovative ways — to make sure we’re truly doing everything we can to keep people safe.”
Multnomah County District Attorney Nathan Vasquez, however, referred to the U.S. Constitution’s Supremacy clause, which maintains that federal laws take precedent over conflicting state ones. It was a key argument when a district court judge originally dismissed the DEA case in January 2025.
“I seek to build and protect community in Multnomah County, but prosecution of federal officers for how they perform their job is not a tool available to do so even as I strongly disagree with what I see and hear about the impact of their action,” Vasquez said in a statement.
Roxy Mayer, a spokesperson for Oregon Gov. Tina Kotek, said in an email that the governor is talking with lawmakers about potential legislation in 2026. Kotek reminded Homeland Security Secretary Kristi Noem that federal agents must follow Oregon’s protest and policing laws, Mayer said. Some of them were sponsored by Kotek herself.
“The governor has not shied away from protecting Oregon communities and our democracy from the Trump administration’s chaotic decisions and abuses of power,” she said.
How would a case play out?
There are indeed instances in which federal agents’ behavior could be prosecuted by state or local law enforcement, according to Tung Yin, a professor of law at Lewis & Clark Law School and multiple other legal scholars. But he said the case would likely move to federal court, where the government would likely try to get it thrown out.
Under a Biden-era rule, homeland security agents can “use force only when no reasonably effective, safe, and feasible alternative appears to exist.” The Department of Homeland Security this year has failed to provide evidence for its claims of a 1000% rise in assaults against officers. Trump administration lawyers have also walked back court filings overstating the number of federal law enforcement present at the Portland ICE facility.
Complicating the push by Democrats is a Supremacy clause interpretation enshrined by a 1890 U.S. Supreme Court case in which a U.S. marshall, who shot a man attacking a Supreme Court justice, received immunity from murder charges in California. Since then, federal judges have focused on whether the action in question was legally authorized and if the agent’s conduct was “necessary and proper.”
In Idaho, for instance, a full court of the 9th Circuit Court of Appeals ruled in 2001 that an FBI agent could not avoid an evidentiary hearing over manslaughter charges for fatally shooting an unarmed woman 200 yards away during the 1992 Ruby Ridge standoff with armed white supremacists. Prosecutors eventually dropped the charges, and the majority opinion warned such cases should be a “last resort.”
Yin suggested that involvement from local police could also help people bring their own civil suits against agents or preserve crucial evidence should they ever change their minds. An instance of a federal agent firing pepper balls or rubber bullets into a crowd could be filmed from the sidelines to document the threat level and whether any notice was offered to the crowd.
“Maybe they’re claiming that I felt my life was in danger,” he said of a potential defense. “But that’s something they would have to raise in the case itself. It’s not something that would be an instant immunity for prosecution.”
Police and feds dubious
The homeland security department and ICE did not respond to requests for comment. The justice department has said attempts to arrest federal agents performing their duties are “illegal and futile.” Other supporters of similar efforts by the Oregon Democrats include San Francisco’s district attorney and Illinois Gov. JB Pritzker.
“We’re in the middle of the five-alarm fire,” U.S. Rep. Maxine Dexter, a Democrat from Portland, said in a statement. “Oregon must use every tool available to protect our communities from Trump — including prosecuting federal agents who break the law in service of his cruel immigration machine.”
Justin Krakoff, a spokesperson for U.S. Sen. Jeff Merkley, an Oregon Democrat, said in a statement that state and local law enforcement possess “legal tools to enforce the laws on our books to protect Oregonians’ civil rights, and should they need to, hold those accountable for violating civil rights.”
U.S. Rep. Suzanne Bonamici, a Democrat from Beaverton, said in a statement that she would support using state and local laws for holding federal agents accountable “if the federal agent is taking action that is unconstitutional or outside the scope of their official duties.”
But the Portland Police Bureau bristled at the idea suggested by the lawmakers. Mike Benner, a spokesperson for the agency, pointed to administrative rules on use of force and crowd control, which note that “nothing in this directive relieves members from following other Bureau directives, reporting or investigation requirements, or state or federal law.” Another spokesperson, Sgt. Kevin Allen, said he “cannot speak to the ideas put forth specifically.”
“Some do not understand that the federal government has jurisdiction to operate nationwide and local law enforcement cannot interfere with that work,” Allen said.
By Shaanth Kodialam Nanguneri of news partner Oregon Capital Chronicle
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