The City of Portland has demanded that the federal government tear down a fence that separates both demonstrators and rioters from the federal court, including those who have tried to burn repeatedly. Now Portland Commissioner Chloe Eudaly fined $ 500 every 15 minutes, until the fence is removed, although federal officials believe the removal would cause far greater damage and injury on both sides. The question is whether a city can impose such a fine on the federal government.
The fence (rented by the government for six months at $ 208,400) blocks a bike path and sits on what the city calls municipal property.
Eudaly describes the federal officials as "federal occupiers" and, like many politicians in Portland, has called on citizens to combat the "federal occupation".
The question is, why doesn't she just remove the fence when she thinks she has authority, especially during the day when there has been no unrest. She suggested that she feared the lives of the crews, presumably from the federal government:
“Last Wednesday I presented two resolutions that were unanimously approved by the city council. One to prevent the Portland Police Bureau from working with the federal occupiers, and one to reaffirm the rights of press representatives and legal observers. On Thursday I instructed the Portland Bureau of Transportation (PBOT) to enforce federal occupiers to erect a fence in our public right of way. PBOT filed an injunction on behalf of the city – we have not received an answer. We estimate the maximum fine of $ 500 for every 15 minutes the fence blocks our street and investigate other legal remedies available to us. We usually send a maintenance team or contractor to remove such an obstacle, but I will not put workers at risk. Yes, I'm afraid to instruct workers to do their jobs and enforce our laws against the federal government – I hope this gives everyone who reads this break. As of yesterday, the federal government has owed us $ 192,000. We want to collect. "
Then there is the strange failure to get a court order. The most effective way to remove an improperly erected federal fence is to go to court. The federal government could then contest the order and settle the matter by court order. If the city wins, Eudaly and her colleagues should of course be responsible for what comes next. If the rioters can approach the building, fires are easier to set and direct (and potentially fatal) confrontations occur. Eudaly will only say that she is investigating "other remedies". Not much research is required. You report to a court. The court hears your reasoning. The court decides. Done.
I am not sure what other means are available. This sounds more homeopathic than legal.
Now back to that fine.
It is doubtful whether such a fine would work. It is true that the federal government waived sovereign immunity in laws such as the federal tort law, and you have been able to sue the government for damages since 1976. 5 U.S.C. Section 702 states that you are looking for "relief other than monetary damage". Portland could argue that this is not monetary damage, but an ongoing daily fine. Furthermore, it could be argued that dispositions are permitted under federal law and that such fines can be part of dispositions.
In Lane v. Pena, 518, US 187, 192 (1996). The Supreme Court ruled that "(a) the waiver of (federal) sovereign immunity must be clearly expressed in the legal text" and that such waivers should be interpreted strictly in favor of the government. The same applies to punitive damages. U.S. Department of Energy vs. Ohio, 503, US 607, 628 (1992). In cases like Bowen v. Massachusetts487, US 879 (1988). The Supreme Court allowed fines because they were part of a specific legal system that Congress approved under the Medicaid Statute.
In addition, the federal government routinely blocks streets and spaces that are controlled by city or state governments in order to counter imminent risks or dangers, including dealing with crime scenes. It is certainly true that this could take months, but the riots take place daily and dozens of federal officials have been injured, some seriously.
Even if a plausible argument for an ongoing fine could be made, it would take years to collect, and the federal government could turn around and try to reduce federal support for the city by the same amount.
If Portland is serious about removing the fence, it should try to remove it. The federal government would then go to court to join the action. Conversely, Portland could go to court. Of course, such actions are only likely if the city politicians really want to remove the fence, which is doubtful. Removing the fence would be exactly what extreme groups like Antifa tried with saws and torches. Close confrontation with federal officials could escalate the use of violence from non-lethal to lethal.
Thus, the ongoing fine for politicians in Portland has a greater political than an imperative effect. Similar to the graffiti that covers the courthouse, it is a moving but not indelible statement.