“...the state candidly admits that it does not have a shred of evidence that counter-protesters have ever, anywhere, kidnapped a protester or anyone associated with protests. Second, the asserted interest rests on an utterly implausible inference. The State’s reasoning is that counter-protesters, once they learn of seizures of protesters by federal agents, will dress up like police and go out on private missions to kidnap protesters. This despite the fact that such kidnappings are Measure 11 felonies in Oregon, punishable by mandatory minimum sentences of up to 70-90 years in prison.

I do not discount the animosity among these groups and had I been asked to assume that something would result in fist fights, or theft, or destruction of signs, or damage to vehicles, that would have made sense. But the idea that seizures by law enforcement will lead to kidnappings by private parties is a bridge too far.

I put in a similar category the State’s asserted interest in preventing a spate of cases in which protesters mistakenly think the federal agents who are seizing them are actually counter-protest kidnappers. Again, there is no evidence to support such an assertion. The State has not pointed to any instance in which a protester was subjected to state violence because she believed she was resisting a kidnapping. In both instances of a federal seizure it is either admitted or clearly visible that the agents’ uniforms say “Police.” The State further admitted at oral argument that, to its knowledge, counter-protesters have never dressed up as police. Draft.

Finally, the State’s asserted interest here fails the third prong of Lujan: redressability. The State’s requested solution to the kidnapping problem is to require actual federal agents to verbally identify themselves as such, presumably guaranteeing that they are the real deal. But if one is willing to go along with the State’s concerns about copycat kidnappers, it requires me to assume that such nefarious characters are willing to dress up like federal agents and willing to commit the very serious crime of kidnapping, but that they would blanch at the thought of identifying themselves as police. The requested remedy here is a linguistic Maginot line, of no use in the real world.