Protecting Against Militarization of Law Enforcement

Legal Challenges to an Invocation of the Insurrection Act

In the lead-up to the November 2020 presidential election, there is a strong possibility of protests and civil unrest involving escalation between civilians and law enforcement. President Trump could use such conditions to invoke or threaten to invoke the Insurrection Act with the purpose or effect of interfering with the election. Given President Trump’s pattern of abusing power to advance his own narrow political interests, it’s not an unlikely scenario. Protect Democracy has prepared a litigation memo to analyze the Trump administration’s threatened invocation of the Insurrection Act and any potential legal challenges. See an executive summary of that memo below.

For a PDF version, click here.

Deployment of the National Guard as Law Enforcement

The Trump Administration’s use of the National Guard to quell protests in the summer of 2020 has raised legal questions regarding what authority the President has over National Guard units in a law enforcement status. Protect Democracy has prepared the below explainer to provide guidance.

For a PDF of this explainer, click here.

Legal Challenges to Improper Deployment of Homeland Security Forces

The Trump Administration has long sought to have a militarized police force under its direct control. In July 2020, through a mission dubbed “Operation Diligent Valor,” the administration deployed unidentified DHS agents to Portland, Oregon to forcibly suppress protesters exercising their constitutional rights. The purported authority for Operation Diligent Valor is 40 U.S.C. § 1315, which permits the Secretary of Homeland Security to designate DHS agents to protect federal property. It does not authorize a roving secret police or the use of excessive crowd control measures. Protect Democracy has prepared the below explainer to provide guidance about the improper use of 40 U.S.C. § 1315.

For a PDF of this explainer, click here.

Military Leadership Opposes Use of the Insurrection Act

Following the deaths of George Floyd, Breonna Taylor, and countless other Black Americans, protests against police brutality and systemic racism have erupted throughout the United States in the summer of 2020. Though the vast majority (80%) have been peaceful, President Trump has publicly contemplated invoking the Insurrection Act of 1807 in order to deploy federal troops into American cities to quell protests.

In response to President Trump’s threat, American military leadership, both retired and still in service, have come together as a united voice against invocation of the Insurrection Act, which would deploy federal military troops to American streets.

Leading retired military leaders who have spoken out against such action include:

Current Secretary of Defense Mark Esper also stated that he does not support invocation of the Insurrection Act to quell protests.

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