Category Archives: Law

Pervasive pattern of excessive force by federal agents at Portland ICE facility

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From a story from The Oregonian/OregonLive.com by Maxine Bernstein:

Federal officers have “repeatedly” used unnecessary and excessive force against protesters outside the federal immigration building in Portland, a former U.S. Customs and Border Protection commissioner says in a court filing.

Gil Kerlikowske, who led the agency for almost three years to early 2017, provided the assessment in support of an ACLU-backed lawsuit on behalf of protesters and freelance journalists.

They’re seeking a court order to prohibit Homeland Security officers from firing tear gas, flash-bang grenades, pepper balls and rubber bullets against passive demonstrators – or those trespassing or refusing to leave — unless someone poses an imminent threat.

“There appears to be a pervasive pattern of misuse of force by DHS against journalists, legal observers, and protesters who have been present at the protests at or around the ICE Building in Portland,” Kerlikoske concluded. “This pattern includes failure to give warnings, using unnecessary force in the absence of danger to law enforcement, and misuse of crowd-control weapons.”

In a sworn declaration filed in federal district court in Portland, Oregon, Kerlikowske said he reached his conclusion based on his long professional experience, agency rules and law enforcement “best practices,” along with a review of available reports, court records, depositions, photos and videos.

Opinion No. 1: DHS has exhibited a consistent pattern of deploying excessive force against protesters and journalists around the ICE Building, including by using force against people who are not engaged in threatening acts, misusing crowd-control munitions and teargas, and indiscriminately using force that needlessly injures people who pose no threat to law enforcement.

He spells out his analysis of the pervasive use of excessive force in the main part of his declaration, beginning on page 9 and ending on page 23.

Screenshot

A photo lifted from a video taken during a January 19, 2026 peaceful protest at Portland’s ICE facility shows an officer casually aiming pepper spray at people sitting or standing peacefully while posing no threat to law enforcement. Other officers fired multiple volleys of an estimated 100 or more pepper balls into another group of peaceful protesters who again posed no threat to the officers or the facility.

The full document follows.

NLRB files for contempt charges against Pittsburgh newspaper

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Press Release | Newspaper Guild of Pittsburgh

Posted Wednesday, January 21, 2026 11:20 am

On Jan. 20, the National Labor Relations Board (NLRB) filed contempt charges against the Pittsburgh Post-Gazette for defying court orders to restore editorial workers’ contractual, collectively bargained health care plan. The company illegally scrapped that plan in July of 2020.

Editorial workers at the Post-Gazette — members of the Newspaper Guild of Pittsburgh (TNG-CWA Local 38061) — went out on strike on Oct. 18, 2022, demanding the company restore the terms of the entire union contract it illegally discarded, including dignified health care. Following other legal defeats, in March of 2025 the U.S. 3rd Circuit Court of Appeals enjoined the PG to restore the bargained health care.

Company lawyers falsely claimed, both in court and to employees, that the health care plan no longer existed. It did, and does. On Nov. 10, 2025, the U.S. 3rd Circuit Court ordered the company to restore all the requested terms of the contract while also updating its March injunction on health care

The company requested an emergency stay of that injunction from the U.S. Supreme Court in late December. After receiving written arguments against a stay from the NLRB, the Newspaper Guild of Pittsburgh and the U.S. Solicitor General, that request was denied. Within hours of that denial, PG employees were called to an emergency meeting and shown a prerecorded video of a Block Communications Inc. exec telling them the paper was closing on May 3, which is World Press Freedom Day. The PG has continued to not offer the health care plan.

“Over the past several years, we repeatedly warned top Post-Gazette officials that their actions were illegal and were having a detrimental impact on the newspaper. Actions have consequences.” said Andrew Goldstein, Post-Gazette education reporter and president of the Newspaper Guild of Pittsburgh. “Pittsburgh deserves much better than a company that will violate the rights of their employees, spend millions of dollars doing so, cry poor, then skip town.”

If the 3rd Circuit finds the PG in contempt, then it has 14 days from that ruling to comply. If it does not, it will be fined $100,000, and an additional $5,000 for each additional day it flouts the order. On the same timeline, Post-Gazette General Manager Tracey DeAngelo or any officer, agent, attorney or company representative who knowingly violates the order would be fined $10,000 after 14 days, and an additional $1,000 for every additional day.

Due to the retaliatory nature of the company’s decision to close the newspaper, the PG is also risking further liabilities for its violation of federal law.

Following the corporate announcement to close the paper, workers and community members began meeting to advance a vision and plans for an alternative to the Block-owned Post-Gazette that engages more effectively and sustainably as a source of communication and connection to reflect the concerns of working-class people in the region.

U.S. Senator sues Hegseth and the DOD for multiple assaults on constitutional rights

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In the face of persistent moves ordered by Secretary of Defense Pete Hegseth to punish Senator Mark Kelly, a former Navy combat pilot and retired astronaut, for opposing this administration’s policies, Kelly has now filed suit charging that these actions are in direct violation of fundamental constitutional rights as well as basic federal administrative law.

The lawsuit alleges seven violations. Here are a few excerpts from Kelly’s complaint on each alleged violation.

Violation of the First Amendment

Defendants’ actions seek to discipline the Senator for three categories of public statements: (1) reminders to servicemembers of their duty to refuse unlawful orders; (2) criticism of military leadership for “firing admirals and generals” and surrounding themselves with “yes men”; and (3) concerns that certain military operations might be illegal. All three categories are protected political speech….

Furthermore, Defendants’ actions amount to unconstitutional First Amendment retaliation. Senator Kelly’s speech is protected by the First Amendment; Defendants took materially adverse action against the Senator that would deter a person of ordinary firmness in his position; and a causal link exists between the protected speech and the adverse action.

Violation Of The Speech Or Debate Clause And Legislative Immunity

The Speech or Debate Clause provides that “for any Speech or Debate in either House,” Members of Congress “shall not be questioned in any other Place. ” U.S. Const. art. I, $ 6.

The “fundamental purpose” of this Clause is to free “the legislator from executive and judicial oversight that realistically threatens to control his conduct as a legislator.” [legal case citations omitted]

Violation Of The Separation Of Powers

144. The Constitution presumes coequal branches, and the “doctrine of separation of powers” lies “at the heart of our Constitution.”

Separation-of-powers jurisprudence is animated by two primary concerns, “encroachment and aggrandizement.” Defendants’ actions do both.

Allowing Defendants to punish a Senator through military proceedings for his political speech erodes the separation of powers and gives the Executive a power over legislators that the Constitution does not contemplate. [legal case citations omitted]

Violation Of Due Process

Agency decisions violate due process when they have been “prejudged” by pertinent Executive Branch officials, because agencies must “exercise [discretionary] authority according to [their] own understanding and conscience.”

Where a “disinterested observer may conclude that [an agency adjudicator] has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it,” the agency has “deni[ed] due process.”

Secretary Hegseth is the relevant agency decisionmaker here, having issued the censure letter and made the relevant “determination[s].” His letter states that the “Secretary of the Navy [will] recommend to me whether a reduction in grade is appropriate in your case,” but ultimately, “I will determine if a reduction is warranted.” (emphasis added).

Secretary Hegseth has already adjudged the decision to reduce Senator Kelly’s grade. The censure letter declares without qualification that Senator Kelly’s protected speech “undermines the chain of command,” “counsels disobedience,” “creates confusion about duty,” “brings discredit upon the Armed Forces,” and is “unbecoming” of an officer.

These determinations parrot the standards that, under Naval regulations, justify a reduction in grade. And the grade-determination letter confirms that the sole “factual basis supporting this action” is Secretary Hegseth’s letter of censure.

Violation Of 10 U.S.C. § 1370

Under 10 U.S.C. § 1370, an officer’s retirement grade must be determined exclusively by active-duty conduct: Officers “shall be retired in the highest permanent grade in which such officer is determined to have served on active duty satisfactorily,” unless “an officer committed misconduct in a lower grade than the retirement grade otherwise provided for the officer by this section.”

Under § 1370, the Secretary of the Navy-not the Secretary of Defense”shall” make the “determination of satisfactory service” for officers “serving in a grade at or below the grade of major general or rear admiral.”

An O-6, Navy Captain is a grade “below the grade of major general or rear admiral.”

Violation Of Administrative Procedure Act
Contrary To Law

Under the Administrative Procedure Act (“APA”), courts shall “hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Defendants’ actions are contrary to law under each of the constitutional and statutory provisions described in Counts I through V above.

Violation Of Administrative Procedure Act
Arbitrary And Capricious

Under the APA, a court shall “hold unlawful and set aside agency action” that is “arbitrary, capricious, [or] an abuse of discretion.”

Defendants’ actions are arbitrary and capricious because the agency failed to “examine the relevant [information] and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” The agency has not offered any “rational connection” between Senator Kelly’s statements and Defendants’ actions. Id.

Each of these points is presented and argued extensively with a recitation of facts and extensive legal references in Kelly’s legal complaint, which is presented in full below.

Judge: Presidential power deserves judicial deference, not immunity from court review

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Associated Press reported on Christmas Eve:

A federal judge has blocked the Trump administration from enforcing a March presidential memorandum to revoke the security clearance of prominent Washington attorney Mark Zaid, ruling that the order — which also targeted 14 other individuals — could not be applied to him.

The decision marked the administration’s second legal setback on Tuesday, after the Supreme Court declined to allow Trump to deploy National Guard troops in the Chicago area, capping a first year in office in which President Donald Trump’s efforts to impose a sweeping agenda and pursue retribution against political adversaries have been repeatedly slowed by the courts.

U.S. District Judge Amir Ali in Washington granted Zaid’s request for a preliminary injunction, after he sued the Trump administration in May over the revocation of his security clearance. Zaid’s request called it an act of “improper political retribution” that jeopardized his ability to continue representing clients in sensitive national security cases.

As slow and unresponsive as it may seem, and as unhinged from constitutional history and precedent the highest court in the land may be at times, federal judges are in numerous cases finding solid legal grounds for rejecting the president’s assumption of royal powers.

And this rejection of the president’s “improper political retribution” against those he has defined as his political enemies is one of those cases.

In a 39-page opinion issued on December 23, Judge Amir H. Ali, Federal District Court for the District of Columbia, found that Zaid’s due process rights were violated by the revocation of his security clearance.

This case involves the government’s retribution against a lawyer because he represented whistleblowers and other clients who complained about the government, carried out by summarily canceling the attorney’s security clearance without any of the process that is afforded to others. In defending its actions, the government does not meaningfully rebut that the decision to deny this attorney the usual process was based on his prior legal work for clients adverse to the government. The government instead asserts, emphasizes, and repeats that the executive branch has exclusive power to determine who meets the requirements for security clearance. See Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988) (observing that “the grant of security clearance to a particular employee, a sensitive and inherently discretionary judgment call, is committed by law to the appropriate agency of the Executive Branch”). That is well established, but does not answer the question in this case. It is equally well established that the executive branch’s exclusive power to determine who satisfies the eligibility criteria for security clearance does not mean it can conduct that determination however it wants and free from the Constitution’s limits. As Judge Randolph aptly laid out in this context over thirty years ago:

All questions of government are ultimately questions of ends and means. The end may be legitimate, its accomplishment may be entrusted solely to the President, yet the judiciary still may properly scrutinize the manner in which the objective is to be achieved. Suppose the President has unlimited and judicially unreviewable constitutional power to determine which Executive Branch employees will be given access to the nation’s secrets. No one would suggest the government therefore could, despite the Fourth Amendment, conduct random searches without warrants in the hope of uncovering information about employees seeking security clearances. Still less would anyone consider such unconstitutional searches and seizures to be immune from judicial review. The government may have considerable leeway to determine what information it needs from employees holding security clearances and how to go about getting it. But a large measure of discretion gives rise to judicial deference, not immunity from judicial review of constitutional claims.

Nat’l Fed’n of Fed. Emps. v. Greenberg, 983 F.2d 286, 290 (D.C. Cir. 1993). That guidance is sound, and it is binding.

It is another opinion that is worth wading throught the legalese to appreciate the substance of the arguments against the absolute power of this president to act like a king.