Criminal Charges Reflect, Reinforce Power Imbalance Between Law Enforcement and Communities

The chest camera footage of former Minneapolis police officers Alexander Kueng and Thomas Lane—two of the men involved in killing George Floyd—has been made available online. The opening minutes of video illuminate a casual brutality and violence by the police. Lane approaches the car from behind, banging on the window with his Maglite. He clearly startles Mr. Floyd, shouting at him to show his hands. Within 15 seconds, Lane draws his gun on a man suspected of passing a counterfeit $20 bill. Anyone would have panicked. Despite Lane repeatedly yelling at him to “show his fucking hands,” Mr. Floyd stays polite, looking down, calling Lane “sir” or “Mr. Officer.” Mr. Floyd is distraught. He tells Lane that he has been shot before. He begs him not to shoot. He tells him that his mother has just died. He tells them he’s just had COVID. As the minutes unfold the officers continue to escalate the man’s panicked state until Derek Chauvin pins him to the ground.

While Minnesota prosecutors have filed criminal charges against the officers, the charges available to prosecutors have raised questions.

For some abolitionists, the filing of any criminal charges—including against the officers involved in Floyd’s killing—perpetuates a fundamentally tainted system. International human rights law recognizes that victims of human rights violations have a right to a remedy and that accountability is an important tool to prevent future harms. Neither consideration necessitates nor is limited to criminal prosecution and punishment (check out our earlier blog here).

But others have questioned why Chauvin doesn’t face first-degree murder charges.

What charges do the former officers face?

Following the transfer of prosecution to Minnesota Attorney General Keith Ellison, former Minneapolis police officer Derek Chauvin was charged with second-degree and third-degree murder, as well as second-degree manslaughter, for the death of George Floyd. The three officers with Chauvin at the time of Floyd’s killing, Lane, Kueng, and Tou Thao, each have been charged with aiding and abetting second- degree murder and manslaughter.

Derek Chauvin faces three separate charges, each with different elements:

  • Second-degree unintentional murder requires that Chauvin caused Floyd’s death and Chauvin was committing or attempting to commit a felony offense (in this case, assault) at the time. The maximum sentence is 40 years in prison, with a recommended sentence of 10-15 years.
  • Third-degree murder requires Chauvin to commit an act that was “eminently dangerous to others… without regard for human life,” and the act caused Floyd’s death. The maximum sentence for third-degree murder is 25 years in prison and the recommended sentence is 10-15.
  • Manslaughter requires showing Floyd died because Chauvin deliberately committed an act that has an unreasonable risk of death. The maximum sentence for manslaughter is 10 years in prison and/or payment of a fine up to $20,000. The recommended sentence for manslaughter is 4 years in prison.

Aiding and abetting charges require that the other officers intentionally aided, advised, counseled, or conspired with Chauvin to commit the acts that caused Floyd’s death. This charge does not require Chauvin be convicted for either murder or manslaughter. A conviction for aiding and abetting carries the same penalties as for the crimes of murder or manslaughter faced by Chauvin.  

Why not first-degree murder?

Although prosecutors have announced their intent to seek stiff sentences, The officers involved in the killing of George Floyd have not been charged with first-degree murder. Under Minnesota law, first-degree murder charges can be brought only when there is evidence of an intentional killing after premeditation, or that the killing took place in the course of specifically enumerated situations. Amongst those situations, Minnesota statute 609.185 defines first degree murder as intentionally causing the death of a peace officer, prosecuting attorney, judge, or a guard employed at a Minnesota state or local correctional facility while the person is engaged in the performance of official duties.

Minnesota is not out of step with other states. A 2016 survey by the Anti-Defamation League shows that all 50 states provide harsher penalties when a law enforcement officer is the victim. For example, in Michigan, obstructing a police officer, even if no injury results, is a felony punishable by up to two years in prison, while an officer’s assault upon a civilian would result in a maximum penalty of 93 days. If a civilian injures a police officer with a firearm in Pennsylvania, they face a sentence of up to 40 years–similar to the sentence Chauvin faces for second-degree murder in Minnesota.

The United States is not alone. Canada’s Criminal Code provides an automatic upgrade to first-degree murder where the victim is a police officer. In Chile, an “attack against authority” may be separately charged with a penalty that includes imprisonment and a substantial fine. The United Kingdom and Albania provide mandatory statutory sentencing of at least 30 years for individuals who murder police officers. In Armenia and Norway, violence against an officer is a separate offense with its own prison sentence. Some countries have taken a different approach. Germany rejects the idea that police officers require more protection than civilians, recognizing that the police have unique training, legal authority, and special equipment. Similarly, Spain and Liechtenstein do not enhance penalties for murder when the victim is a police officer. South Africa rejected a proposal to provide harsher sentencing for violence against police officers after multiple police killings occurred. 

The rationale for aggravated charges or enhanced penalties for crimes against police typically involves deterrence. Proponents of deterrence argue that, when the state asks an individual to put themselves in harm’s way, the state should take measures to prevent them from being injured or killed. But it also involves the idea of retribution, suggesting that police officers are either more valuable or more vulnerable that civilians.

Different standards: who needs protection from whom?

Meanwhile, there are no corresponding enhanced penalties or elevated charges for crimes committed by police. This asymmetrical approach, which treats crimes against police more severely than crimes by police, reinforces the power imbalance between the police and the policed. While many jurisdictions have statutes that criminalize abuse of official authority, if a police officer assaults or kills someone, they face the same charges as anyone else. Law enforcement officials may also benefit from specific defenses and from qualified immunity, which protects them from claims of civil rights violations. (The Supreme Court decided earlier this summer to let an expansive interpretation of this judicial doctrine stand. For a deeper dive into how qualified immunity has undermined accountability for crimes by police read our June 15 blog).

Police officers undoubtedly take on additional—often significant—personal risk in the course of their duties. But they also assume an elevated duty of public trust as people who are armed, trained to use sub-lethal and deadly force, and vested with authority to pursue, arrest, and detain people. Many international human rights standards exist precisely to limit abuses of this power by armed state actors.

International policing standards recognize that when police violate this public trust, both the directly harmed individual and society suffer. But a recent study by the University of Chicago Law School’s Global Human Rights Clinic found that police forces in the United States’ 20 largest cities fail to meet basic international standards regarding use of force.

One important place to begin is eliminating laws which perpetuate the imbalances and racial disparities that allow extrajudicial killings to occur. Differential treatment where police officers are the victims weakens accountability.[1] Policies that enhance punishment for crimes committed against law enforcement officers, while failing to hold law enforcement officers responsible for crimes committed by them ensures the continued power imbalance between citizens and police officers. This power imbalance is exacerbated by the resources, training, and power police officers wield. Calls for police reform recognize that an important step is balancing these power dynamics by utilizing resources and funding for prevention and alternative forms of policing. And, States have recognized these issues in some areas, such as providing specific penalties and charges for sexual conduct by police officers or correction officers. States must also reflect the enhanced duty of care police officers owe to citizens by virtue of these dynamics.

And while criminal charges may be important steps towards justice, they fail to address the deep layers of harm which extrajudicial killings inflict on the targeted communities. Limiting criminal accountability to the four individuals involved sidesteps the systemic betrayal which occurs when power given to armed state actors tasked with keeping the “community” safe is used for repression and violence.


[1] See, also, MN Stat.609.2231: subd. 1: physical assault of a police officer is 4th degree assault (a gross misdemeanor, raising the penalty from 90 days for other assaults to 365 days); an assault inflicting demonstrable (observable) bodily harm or throwing bodily fluids is a 3-year felony (would be a misdemeanor upon a civilian).

Navigating a New Normal in Relationship Building

Samantha Nelson, summer Development Intern at The Advocates For Human Rights and senior at University of Michigan, Class of 2021

Before joining The Advocates as an intern, I had only a vague idea how nonprofits operate and knew little about the meaning of and working in development. Eight weeks later, and I can confidently say that my knowledge of the inner workings of the nonprofit world has grown ten-fold. 

At the core of development is building long-lasting relationships. The common thread through all the projects that I tackled over the past few months has been sustaining connections. For example, I worked on an intern engagement campaign that showcases the valuable role of young people in human rights advocacy. The project consisted of asking current interns from all different programs to describe the experiences that brought them to The Advocates. I also wanted to know why they felt compelled to be involved in human rights. Aside from helping me learn more about my fellow interns, the project also taught me how to be a more effective communicator, a critical skill in development. When I drafted intern emails, I had to be mindful of the language I used, the tone I took, and the clarity of my request. Reflecting on my communication with the interns now, I realize that the goal of the campaign wasn’t just to extract information from each individual, but to form relationships, to really get to know each intern with intentionality and genuine interest. 

Strengthening relationships was also at the core of another project. I wrote handwritten cards to longtime friends and partners of The Advocates and learned that seemingly small tokens like birthday cards demonstrate a commitment of time and energy and, by extension, symbolize a commitment to the supporters of The Advocates themselves. Investing time is crucial to constructing long-lasting relationships, which, as I’ve come to learn, is something that development prioritizes in all of its interactions.  

Deep-rooted relationships are the key to running a sustainable nonprofit because it’s these relationships that we can depend on during difficult times. And these are difficult times indeed. In the midst of a global public health and racial crisis, this may well be one of the most trying years that many of us have ever faced. These crises have created tangible obstacles to establishing connections and maintaining relationships. With our external partners, we face new challenges of planning engaging virtual events, accommodating different preferences, and preserving a spirit of positivity and hope. Internally, we lose the small moments of office coffee chats, intern lunches, and the flow of the workday. At the center of one of the most formidable moments in history, we’ve all been forced to take pause and wonder where there is room for relationship-building in this unfamiliar reality. 

Countless uncertainties and barriers lie ahead for us all. Daunting as the future may feel, there is always room for relationship-building. As I reflect back on my internship at The Advocates, I realize that relationship-building, though undeniably difficult, is not only still possible, but also essential. While there were no talks over coffee or lunch breaks with coworkers, there were brown bag lunches, weekly virtual chats with cohorts of interns and various program directors, and mentorship zoom calls. And although the workday couldn’t fit the conventional nine to five structure, there were still weekly staff meetings with updates on the progress of respective programs and stories of both challenges and triumphs. Even without in-person interaction, I realize that I was able to build relationships: during weekly meetings with my supervisors, while collaborating on projects with my coworker Chloé, and through check-in Zoom “coffee chats” with my internship mentor. Though I hadn’t expected to form bonds over zoom calls and WhatsApp messages this summer, I’m grateful for these virtual moments and the knowledge I’ve gained from the people with whom I spent them.   

In times of crisis and inconsistency, we all need connection and relationships to ground us. Though the next year will present hurdles to overcome, development’s role will be more vital than ever before because what the world needs now is connection. Development is the glue of the nonprofit. It keeps all of us– staff, donors, interns, and friends– engaged and united under the common goal of creating a more equal and just society.  

When I think back to the handwritten thank you letters, my mind always wanders to the same line, ‘You are changing the world for good.’ These words encapsulate the essence of The Advocates’ goal to not only create a more inclusive and just world, but to inspire others to do the same. I like to think that development’s role is to connect us to one another and guide us all toward that shared goal, a goal that, whether in person or through a computer screen, I know we’ll keep fighting for. 

By Samantha Nelson, Development Intern at The Advocates For Human Rights and a senior at the University of Michigan.


The Advocates for Human Rights is a nonprofit organization dedicated to implementing international human rights standards to promote civil society and reinforce the rule of law. The Advocates represents more than 1000 asylum seekers, victims of trafficking, and immigrants in detention through a network of hundreds of pro bono legal professionals.

Peaceful Protests Met With Excessive Force in Belarus

Recent days in Belarus has seen egregious violence, police brutality, suppression of freedom of assembly and expression, and threats to a fair and free election process for president. The President of Belarus, Aleksandr Lukashenko, has been the leader of Belarus for 26 years. In 1991, Belarus gained independence from the Soviet Union. On August 9th, 2020, presidential elections were once again held. The two leading candidates were President Lukashenko and Ms. Svetlana Tikhanovskaya. Ms. Tikhanovskaya ran in place of her husband, Sergei Tikhanovsky. Early voting ran from August 4th until August 8th. According to activist groups, beginning on July 22nd, the Central Elections Commission limited the number of observers at the voting stations, stating this was necessary to prevent the spread of COVID-19. The result was only 11.5% of the trained monitors had access to the voting stations and only for a limited amount of time.

When the election results came in, the Central Elections Committee declared President Lukashenko won re-election with more than 80% of the votes. Ms. Tikhanovskaya refused to recognize the results, stating that her data from the voting stations indicated she had actually received around 70-90% of the votes. Activists stated that other organizations, including “Platform ‘Holas’”, reported similar findings and that voters had published photos of final voting reports from a number of voting stations all of Belarus with the unfalsified results.

After the results were announced on August 9th, citizens gathered in the streets of Minsk and other cities in Belarus to peacefully protest. During that first day, more than 3,000 were arrested. Their peaceful, unarmed protest was met by excessive force by the Belarusian police. This force included tear gas, flash-bang grenades, water cannons, rubber bullets, and beatings. Similar events took place on the second evening, with more than 2,000 people detained.

Before the third evening of protests began on August 11th, activists reported police began to make “preventive” arrests of those who seemed suspicious. That evening, there was a crackdown on journalists, with police beating journalists and breaking their equipment. Eventually protestors began to throw bricks at the police; the police chased protestors and brutally detain them.  Children and other bystanders were included in the arrests. Cars were damaged by the police and drivers were beaten and arrested. Overall, activists reported 6,000 people are said to have been arrested during those three days, although the independent mass media source Nasha Niva believes this number to be underestimated. Around 50 of those arrested were journalists. Amnesty International and other local groups have reported protestors have described “being tortured or subjected to other ill-treatment in detention centres, including being stripped naked, beaten, and threatened with rape.”.

 President Lukashenko continues to refuse a recount, instead accusing opposition of attempting a coup. Neighboring states refuse to recognize the re-election of President Lukashenko and calling for free elections. Since August 12, 2020, there continue to be peaceful protests and strikes in Minsk and other cities. Strikes include employees at a state-run factor, a demographic that has historically supported the president. Internationally, President Putin has pledged Russian assistance to President Lukashenko should Belarus be invaded and has warned both President Macron of France and German Chancellor Angela Merkel against interfering. EU leaders called an emergency summit, after which they stated “they would not recognize the results of the recent Belarus election and would shortly impose sanctions on those who were involved in electoral fraud and the repression of protests.”, with details  to bedeveloped. The leaders released a joint statement supporting those on the streets in Belarus, being cautious to avoid stating they do not recognize the authority of President Lukashenko. Finally, they offered to assist the government and the opposition mediation. In addition, it was announced that 53 million Euros will be re-directed from the state of Belarus to non-governmental organizations, victim assistance and COVID relief.

While talks continue, President Lukashenko has once again ordered police back on the streets, stating ‘There should no longer be any disorder in Minsk of any kind.”. After several days of peaceful protests and an absence of law enforcement, police vans are in the streets, and officers have been stationed outside factories. With this increased presence of law enforcement, the use of excessive police force against peaceful protestors must be condemned. “Her Team” has released a report that details several other violations and abuses, including illegal detentions, inhuman treatment and torture, internet shutdowns, and harassment and threats against women political opposition leaders. 


By Elizabeth Montgomery, Staff Attorney, Women’s Human Rights Program at The Advocates For Human Rights.


The Advocates for Human Rights is a nonprofit organization dedicated to implementing international human rights standards to promote civil society and reinforce the rule of law. The Advocates represents more than 1000 asylum seekers, victims of trafficking, and immigrants in detention through a network of hundreds of pro bono legal professionals.

The New Price for Asylum

The Trump Administration announced on July 31 that it had issued a final rule regarding fees charged by United States Citizenship and Immigration Services (USCIS) for immigration benefit applications.  The Rule reflects not only a questionable shift in how USCIS funding works, but also a significant change in our national treatment of migrants.   

According to USCIS, “The rule accounts for increased costs to adjudicate immigration benefit requests, detect and deter immigration fraud, and thoroughly vet applicants, petitioners and beneficiaries. The rule also supports payroll, technology and operations to accomplish the USCIS mission.”[1]  While the office is provided funding through Congressional appropriations for general operations, it is a largely fee-based agency.  Fees fund nearly 97% of USCIS’ budget.  Meaning, the people applying for immigration benefits cover the costs of processing their applications by paying fees associated with those applications.  With the increase in fees, however, USCIS now seeks to have migrants not only cover the costs of processing, but to cover the additional costs of “fraud prevention” and operations that have resulted from the Administration’s efforts to make processes more difficult, utilize USCIS staff for immigration enforcement efforts, and deter applicants.  The structure of the rule, however, makes clear that the Trump Administration believes the most vulnerable should shoulder this burden. 

For example, the fee for a waiver of inadmissibility—usually required by applications who have prior immigration violations or criminal issues that would otherwise prevent their ability to obtain immigration benefits—is increasing from $930 to $1,400—a 51% increase.  Compare this to the fee for a petition for immigrant worker (Form I-140), which is decreasing from $700 to $555—a 21% decrease.  The application for a travel document is increasing by 3% from $575 to $590, while a Refugee Travel Document is increasing by 7% from $135 to $145.  Applications for suspension of deportation is increasing 535 percent from $285 to $1,810.  And, fees for applying for naturalization are increasing by 81 to 266 percent (depending on type of application). 

Perhaps most egregiously, however, is the new inclusion for the first time in our history of a fee to apply for asylum.  This makes the U.S. one of only three countries in the world—amongst us, Iran and Australia—to charge to obtain protection from persecution and torture.  

Applications for asylum have traditionally been free, and they remain that way for the majority of countries in the world.  This reflects the reality that those fleeing persecution and torture are the least able to afford application fees.  As we know from many of our clients at The Advocates, asylum applicants have often been forced to flee their homes with very little notice—bringing with them only what they could quickly and covertly carry, with no time to liquidate assets.  Additionally, many must pay exorbitant fees for travel into the U.S. or to help secure relevant travel documentation.  In other cases, they may have spent all of their savings—and that of friends and family—to bribe their way out of jail lest they face certain death in their home countries.  These are not the stories of individuals relocating to the U.S. for business opportunities or to be near family.  As Warsan Shire explains: “no one leaves home unless home is the mouth of a shark….” 

Yet, with this rule—in concert with myriad others proposed and implemented by the Administration seemingly since its first month in office—the United States is turning itself into another shark.  No longer will the United States be welcoming those for whom migration is a last resort; instead, it will be saying that one must pay the price for safety or look elsewhere. 

While a filing fee would have been an affront previously, this is all the more disturbing given the significant narrowing of approvals under the Administration’s many new rules.  For example, the Administration has worked to nearly strip the right to apply for asylum as a victim of domestic of violence or due to threats from gangs and cartels.  In other instances, it is working to expand bars for those perceived to persecute others, committed certain crimes, and more.  Cases that we previously would have felt confident to see approved are now being referred to immigration judges who may also deny them.  Thus, a $50 filing fee without a guarantee of protection is an affront to the human rights of migrants as well as the laws of the United States, which specifically enshrine the rights of asylum seekers and torture victims.

This rule also comes at the same time DHS issued its final rule significantly contracting the rights of asylum seekers to obtain authorization to work in the United States.  Already, we know that many of our clients must depend on friends and community-members to survive after making the perilous journey to the U.S.  Additionally, many asylum seekers are coping with trauma from torture while working to calm the nerves of their children who have journeyed with them.  Others are working to learn basic English, bus routes, cultural nuances, and significant weather changes—all while quickly preparing their asylum cases before the one-year bar elapses.  Now, they must do so without the prospect of work authorization for one-year (possibly not until their case is approved for someone who entered without inspection or failed to apply within one-year of entry) and pay the $50 filing fee simply for the opportunity to have their case heard.  While we see through our work incredible stories of community support and asylee resilience, we also know that many of our clients experience further exploitation by those on whom they are forced to depend.  Extending the wait time for employment authorization, demanding a filing fee, and restricting grants for asylum or prolonging the process extend the likelihood of exploitation and harm, violate the human rights of asylum seekers, and betray our roots as a leader in refugee protections. 


By Lindsey Greising, Staff Attorney with the Research, Education and Advocacy team at The Advocates for Human Rights

[1] https://www.uscis.gov/news/news-releases/uscis-adjusts-fees-to-help-meet-operational-needs

Poland’s Dangerous Withdrawal From The Istanbul Convention

Introduction

Poland has ratified the Istanbul Convention, yet announced plans to withdraw from the treaty. Related attacks on reproductive rights, the independence of the judiciary, sex education, and civil society have abounded.

The Istanbul Convention

The Istanbul Convention, or the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, was adopted in November 2011. This treaty seeks to address gender-based violence against women in all its various forms. Members are expected to amend their laws to define and criminalize violence against women and children, provide public education, and protect victims by establishing strong support services, in line with international standards.

The Status of the Istanbul Convention in Poland

Poland signed the Istanbul Convention on December 18, 2012 and ratified it on August 1, 2015. Since then, claims that the Istanbul Convention promotes so-called “gender ideology,” a conservative fiction that equates the goals of women’s and LGBTI rights activists with destroying the traditional family unit (consisting of a married man and woman and their children) have instigated threats to withdraw from the treaty. On July 25, 2020, Justice Minister Zbigniew Ziobro announced that Poland will withdraw from the treaty. The Council of Europe condemned the action in a statement released on July 26, 2020, warning Poland that such a move would have serious implications for the protection of women. Thousands in Poland began protesting after Minister Marlena Malag, Minister of Family, Labour and Social Policy tweeted on July 19, 2020 that Poland was preparing to withdraw from the Istanbul Convention. Several organizations, including the Ordo Iuris Legal Institute, have long supported withdrawal from the convention, arguing that it is a threat to traditional family values. Together, with dozens of pro-family organizations, they began collecting signatures for a citizens’ legislative initiative called “Yes to Family, No to Gender.” The petition lobbies the Polish government to withdraw from Istanbul Convention and propose an alternative treaty, the International Convention on the Rights of the Family.

Other Legislation

The withdrawal from the Istanbul Convention and such initiatives are not a new development. Two other citizens’ initiatives recently garnered sufficient signatures to be introduced to the legislature, one of which is the Stop Pedophilia Bill. This bill would criminalize “anyone who promotes or approves the undertaking by a minor of sexual intercourse or other sexual activity.” This could include those who provide sex education or information to minors, such as health educators or providers. 

The bill has been supported by the Law and Justice party, which controls the Sejm legislative body and the presidency. President Duda, relying on anti-LGBTI rhetoric, was re-elected in July 2020. State-run television speculated “on whether Duda’s presidential opponent would have forced LGBTI education on all children, whether he would replace independence-day parades with gay-pride parades, [and] whether Duda should push for a clause in the constitution banning gay marriage.” These sentiments were also echoed by a large part of the Catholic Church, including the archbishop of Krakow who has referred to homosexuals as “the rainbow plague.”

Response of Civil Society

Attacks on NGOs in retaliation for participating in marches for women’s rights have occurred. On the one-year anniversary of the 2016 demonstrations, the government raided many women’s rights organizations. Many organizations, especially those related to sexual and reproductive health, anti-violence, and non-discrimination, have seen their work demonized. Those working in the public sector, such as government employees or teachers, are under pressure not to collaborate with those organizations. Those that continue to work with the NGOs or participate in the women’s rights protests often find themselves subject to disciplinary hearings or other retaliation.

When the two new citizen’s bills were introduced in April during the pandemic, activists again protested by using online platforms, placing signs in their windows and marching in the streets while practicing social distancing. Many who left their homes now face fines of up to $7000, despite wearing masks and leaving their homes for everyday necessities.

Implications

The withdrawal from the Istanbul Convention will greatly impact victims of gender-based violence against women, both in Poland and internationally. In Poland, human rights activists will no longer have the treaty as a tool to push for legislative and societal changes. Such withdrawal sets a dangerous precedent and a is a serious backlash to women’s rights.

By Elizabeth Montgomery, Staff Attorney, Women’s Human Rights Program at The Advocates For Human Rights.


The Advocates for Human Rights is a nonprofit organization dedicated to implementing international human rights standards to promote civil society and reinforce the rule of law. The Advocates represents more than 1000 asylum seekers, victims of trafficking, and immigrants in detention through a network of hundreds of pro bono legal professionals.

Armed and Unaccountable, Federal Forces Use Tactics Honed at the Border against Protestors

The deployment of anonymous armed federal agents, now identified as part of the Department of Homeland Security (DHS), in Portland has yielded shocking reports of arbitrary arrests, detention without charge, and short-term disappearances, in addition to injuries to protesters resulting from use of sub-lethal force and chemical agents. Garnering less attention, but no less troubling, on July 8, the Department of Justice launched Operation Legend and deployed federal forces under the guise of addressing “violent crime” in Kansas City, Missouri. Plans for more operations in other cities have been reported.

What explains the federal government’s apparently newfound zeal to engage in garden-variety policing of the kind usually reserved to local and state law enforcement?

Widespread protests around the United States, sparked by the extrajudicial execution of George Floyd by Minneapolis police officers, provided the administration with a pretext to flex its paramilitary muscle. In June, the president’s desire to “dominate” protestors and the attorney general’s promise to deploy “even greater law enforcement resources” in Washington made news.

Meanwhile, The New York Times reported a chilling statement by acting DHS secretary Chad Wolf that his agency “will not allow anarchists, disrupters and opportunists to exploit the ongoing civil unrest to loot and destroy our communities. While the department respects every American’s right to protest peacefully, violence and civil unrest will not be tolerated. We will control the situation and protect the American people and the homeland at any cost.” [emphasis added]

International human rights standards explicitly forbid defense of public safety “at any cost.” Certain human rights – including freedom from arbitrary detention or unacknowledged detentions and freedom of opinion – can never be waived, no matter how severe the state of emergency.

As New York Times columnist Jamelle Bouie asks, “How can this be a job for Homeland Security?

The DHS Rapid Deployment Teams followed an executive order directing federal agencies to send personnel to protect monuments, statues, and federal property during continuing protests against systemic racism and police brutality. The RDTs are reportedly “made up of officers from Customs and Border Protection, the Transportation Security Administration, the Coast Guard and Immigration and Customs Enforcement who back up the Federal Protective Service, which is already responsible for protecting federal property.”

By deploying DHS forces in Portland, the country is witness to abusive tactics long used against immigrants, border communities, and communities of color. While federal courts occasionally have reminded the Customs and Border Protection (CBP) that the border is not a “rights-free zone” (read Judge Donovan Frank’s 2018 opinion in a case brought by our colleagues at the ACLU), their effective jurisdiction has spread to operate freely within 100 miles of US land and water borders where approximately 63 percent of the US population resides. And even the extrajudicial execution of a teenager who was standing in Mexico at the time he was shot by a Border Patrol agent has been found to be acceptable. (DOJ investigators declined to prosecute after finding the agent did not violate CBP policy and the Supreme Court allowed the killer to evade civil liability through its overbroad qualified immunity doctrine).

Since its inception, DHS has run this rapidly expanding agency (CBP boasts more than 60,000 employees)  with a dangerous mix of extraordinary power and little accountability. The agency operates with virtually no transparency, making it chronically difficult to get answers from CBP officials about policies, procedures, or practices. A 2014 report examining 809 complaints filed between January 2009 and January 2012 found:

“For years it has been reported that U.S. Border Patrol agents routinely ignore the constitutional and other legal rights of both immigrants and U.S. citizens. More precisely, agents of the Border Patrol are known for regularly overstepping the boundaries of their authority by using excessive force, engaging in unlawful searches and seizures, making racially motivated arrests, detaining people under inhumane conditions, and removing people from the United States through the use of coercion and misinformation.”

American Immigration Council, “No Action Taken: Lack of CBP Accountability in Responding to Complaints of Abuse,” 2014.

CBP’s powers are extraordinary. What other federal agency sets up checkpoints for document inspection, engages in race-based traffic stops under color of law, insinuates themselves into routine law enforcement encounters as “interpreters,” and boards buses and trains demanding identity documents? These tactics are tailor-made for repression.

So it’s not surprising that Acting DHS Secretary Wolf said in a Fox News interview on July 21 that DHS agents are “having to go out and proactively arrest individuals.” After all, arresting people without probable cause is business-as-usual for his agency. (It is also unconstitutional. Harvard law professor Andrew Crespo breaks it down in a fabulous Twitter thread).

Perhaps most disturbing, however, is the recasting of ICE and CBP as “intelligence” rather than “law enforcement” agencies. Reported in February, the move threatens to make these forces even more impervious to accountability.

Human rights violations, like human rights themselves, are interconnected and interdependent. Our outrage needs to be too.

The same tactics refined at the border are now being deployed to “control anarchists,” according to Acting DHS Secretary Wolf (whose @DHS_Wolf twitter feed uses “anarchist” so frequently you would think he stopped reading his nativist history book at 1920). This is a potent example of how human rights abuses, when allowed to continue unchecked, create space for further repression affecting ever greater numbers of people, geographies, and issues.

Activists warning of the impact of criminalization and mass incarceration will see another tool in the toolbox of repression being used to hammer protestors in Portland: protecting private property from graffiti. That’s right. Graffiti. DHS has attempted to justify the tactics in Portland by pointing to dozens of episodes, including the defacement of federal property with graffiti. Proponents of the toxic “broken windows” policing strategy have long cast graffiti in the same terms reserved for gang affiliation and drug crime, justifying use of absurdly draconian felony charges against Black and brown communities. (For a powerful deep dive into graffiti and the impact of criminalization of urban artists check out the Scared Straight episode of the California Love podcast).

Not surprisingly, this deep-seated commitment to prioritize the protection of inanimate objects over the protection of people (especially Black and brown people) comes alongside Secretary of State Mike Pompeo’s “Commission on Unalienable Rights’” pronouncement that the founding fathers sought to protect private property above nearly everything but religious freedom (for Christians). Check out The Advocates’ blog post on the “Commission” here.

What’s unfolding in Portland has rightfully horrified many people as an extraordinary crackdown on First Amendment protected activity and a terrifying disregard for Fourth Amendment guarantees against unlawful search and seizure. Moms decked out in protective goggles and dads armed with leaf blowers have turned out in the streets.

But let’s be honest. Border communities have faced daily human rights violations committed by an unaccountable and armed paramilitary force patrolling a militarized border. Black artists have faced serious jail time for engaging in artistic expression without the protection of a studio or gallery.

Human rights violations, like human rights themselves, are interconnected and interdependent. When the headlines of federal forces in our communities shift away from the Portland protests, remember that BIPOC communities will remain directly and deliberately in the crosshairs. Our outrage needs to follow.

How can we take action?

Demand accountability and disinvestment. CBP’s annual budget is more than $18 billion, with an additional $10.4 billion for ICE, nearly doubling since 2014. (Meanwhile, CBP recently was found to have misappropriated emergency funds earmarked for “consumables and medical care” to address deplorable detention conditions,” spending the money on ATVs, boats, motorcycles, and other unrelated expenses.)

Document and report abuses. In addition to the Department of Homeland Security Office of Civil Rights and Civil Liberties, the UN Working Group on Arbitrary Detention and the UN Working Group on Enforced Disappearances and the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions each have special procedures for investigating human rights violations.

Stand in solidarity. Calls to #DefundPolice and #AbolishICE are more than hashtags. They represent insightful community-led movements to envision and achieve a new vision of safety at our border and in our communities that values the human rights of us all.

By Michele Garnett McKenzie, Deputy Director and Director of the Research, Education, and Advocacy team at The Advocates for Human Rights.