OCCUPY AND BEYOND
Practical Steps For
Reasonable Police Crowd Control
by Lou Reiter
©2011 Lou Reiter, Co-Director, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
The “Occupy Movement” is really a precursor to the near future for many of our police agencies. There are many other forms of protest we should expect to encounter: political demonstrations, union protests, sports celebratory events, immigration rallies and other protests of governmental actions.
We shouldn’t forget the lessons learned in the 1960s during the civil rights movement and Vietnam protests. We shouldn’t simply rely on our new equipment and force tools.
There are five continuing issues that rise up from our recent encounters with crowd control: officer/agency attitude, unlawful assembly response, arrest provisions, use of force, and mass arrest protocols. These are the issues that have become the focus for civil actions against police agencies.
Officer and agency attitude is displayed whenever we engage in crowd management and control. It’s imperative that we leave our personal beliefs at home when we’re assigned to crowd control. Many times our beliefs will be directly opposite those that we’re going to be facing. We should be the good guys. We must be impartial in our response to these various crowds. There is no place for officers to put tape over their nametags. We must keep our mouths in check even when talking amongst ourselves. Our job becomes much more difficult when the crowd believes we’ve taken sides.
Every state has a provision for declaring an unlawful assembly. There are four essential elements that should be met in declaring a demonstration as an unlawful assembly. The first is to issue the declaration in a manner that you can record and document so that everyone affected could have heard the announcement. That means you need to have officers stationed at the furthest parts of the demonstration. Next you need to give the demonstrators a specific amount of time to pack up their belongings and leave. You need to give them the routes you want them to use when leaving. Those left behind are now committing a misdemeanor. Now those left behind can be arrested; not forcibly driven off with chemical agents and batons.
Arrest provisions, even during mass demonstrations, are still guided by Graham v. Conner. Demonstrators not leaving are engaging in civil disobedience and most want to be arrested. Now if the demonstration turns into a riot endangering the public or mass destructive vandalism occurs; our tactics will change to protect the general public and personal property.
So we’re now going to arrest those demonstrators who have elected to remain. They are now committing a misdemeanor; probably not the most serious of crimes. What’s reasonable? Of course it depends on the level of resistance presented. Expect verbal antagonism; it’s not another crime under these circumstances. Expect that some will try to make our arrest procedures more difficult by locking arms or using locking devices. Some will actively resist by twisting and turning. Others may assault you. Each of these levels of resistance should be anticipated. We can reasonably respond to overcome these types of resistance and affect the arrest.
You’re going to be on television and the Internet. How do you want to be depicted? We’ve got all the time even if it’s overtime. Now is the time to slow down the arrest process and proceed methodically. Move in to each arrestee or a small group of arrestees and verbally seek compliance. If they resist we have placed them on notice and now can use force to get them to comply. This is the time to have each arrest team’s conduct videotaped by our photographer. You don’t want to rely on the hundreds of smart phones and hand held devices in the crowd of onlookers.
Another issue to consider is how to document any normally reportable use of force. No current written force policy says that there is an exception to the force reporting policy when engaged in crowd control. When you assemble for crowd control you need to conduct an inventory of your chemical agents and impact rounds. If you don’t, Internal Affairs is going to be very busy reviewing hours of video and Internet footage.
Mass arrests can be difficult; but they’re impossible without a protocol. The essential aspects are to match up the officer observing the violation and making the arrest. Without this match the prosecution is unrealistic and it ends up looking like we simply were jacking up the demonstrators. An unplanned mass arrest procedure will also end up looking like we were simply trying to punish the arrestees for their demonstration by forcing them to wait unreasonable hours for processing. There are other examples of degrading misconduct in mass arrest situations. Forcing arrestees to wait in locations without restroom facilities and requiring them to relieve themselves on the floor or in prisoner transport vehicles. Writing booking numbers in black markers on the arrestees’ forearms. These forms of abuse cannot be condoned.
The digital age today makes mass arrests easier. Officers can mark their flex cuffs with their serial number. The videotaping of the arrest can serve to identify the arresting officer. You might consider using an IPad or even a blank slip of paper to record the officer with the arrestee. It might seem easier and more cost effective to simply have one officer be the arresting officer for all arrests, but it will backfire and cost your agency much more than overtime in the subsequent civil lawsuit.
It’s time to dust off those contingency plans from years ago. Maybe they’ve been throw out, outdated or don’t exist. You need to start planning now so you don’t get caught short when you encounter your next demonstration.
Law Enforcement Administrative Investigations, 3ed ($49.95 + shipping)
A Supervisory and Agency Guide To handling citizen complaints of misconduct, conducting administrative investigations, managing the Internal Affairs Function, creating reasonable and defensible discipline.
TRC491: Use of Force, Legal Update & Best Practices ($50 + shipping)
53 Minute Recorded Video of Webinar Presentation (Microsoft Windows® Media .wmv format)
Instructor's PowerPoint® Presentation in electronic format
“Use of Force 2nd Edition" by Jack Ryan, Printed Manual
The Law and Best Practices of Successful Police Operations, 2ed ($59.95 + shipping)
The most comprehensive law enforcement LIABILITY and BEST PRACTICES manual in the country!
Includes over 360 pages of best practices and critical task liability issues for law enforcement.
2010-2011 Legal Guide for Law Enforcement ($15 + shipping)
A comprehensive legal guide for critical task in law enforcement, outlined in this easy to read and understandable flip guide. 4 x 6, spiral bound and indexed for quick reference, 149+ pages.