Over the last few weeks law enforcement throughout the United States has been faced with controlling protests and even riots following the death of George Floyd during his arrest by the Minneapolis Police Department. These events did not begin with George Floyd, but rather have occurred over the last few years following deaths of black males during events with law enforcement. That said, the George Floyd case has reverberated around the United States and even to other countries. It should be noted that all of law enforcement has condemned the manner of restraint of George Floyd by Minneapolis officers and the lack of intervention by officers who were present.
This article accompanies the virtual training session for law enforcement on responding to protests, unlawful assemblies or riots.
At the outset we think it is important to mention something that does not seem to have been considered by any of the media, political leadership or law enforcement leadership. The protests and riots relating to law enforcement’s use of force, particularly as it relates to the Black Lives Matter movement are different than any other protest that law enforcement faces. Consider the fact that in most protests, law enforcement stands in the neutral zone between two opposing forces, somewhat like the referees in the middle of two opposing teams. For example, with abortion protests that have occurred at places like Planned Parenthood for years, law enforcement takes a position between the pro-life movement and the pro-choice movement and tries to keep the protest peaceful while at the same time allowing these opposing viewpoints to get their message across. I technical terms we would call the opposing viewpoints at the protest, “the protesters” and the “counter-protesters.” Law enforcement is a neutral party that tries to keep the peace among these opposing viewpoints and, in the planning stages are told remain neutral and treat both viewpoints equally.
The current protests are very different, law enforcement is the opposing viewpoint to the protesters. The protest groups are protesting against the actions of law enforcement. While law enforcement certainly does not view it this way, law enforcement’s actions in controlling these protests is like having the counter-protesters controlling the protesters. From the perspective of the protesters, there is no neutral party between them and the opposition. At some level it would be like having the leadership of Planned Parenthood take responsibility for controlling the anti-abortion protesters. As such, the agitation level and the interactions between the protesters and law enforcement is at a heightened level and law enforcement’s response to the protesters may be characterized by protesters as being retaliation for their criticism of law enforcement. One of the key tenets of law enforcement is that the application of law must be impartial. In the area of crowd control, protests, unlawful assemblies and riots, law enforcement is the governmental entity charged with ensuring public safety. Because in this instance law enforcement is the subject of the protest, it is not surprising that the actions of law enforcement are intensely scrutinized and are often criticized as being retaliatory and unfair.
Law enforcement actions during a protest are at the intersection of the protesters’ First Amendment Rights to peacefully assemble and Fourth Amendment issues related to arrest and use of force.
A case from the United States Court of Appeals for the 2nd Circuit explained in Papineau v. Palmley, 465 F.3d 46, 56-57 (2nd Cir. 2006):
The Supreme Court has declared that the First Amendment protects political demonstrations and protests – activities at the heart of what the Bill of Rights was designed to safeguard. Indeed, the Court has repeatedly held that police may not interfere with orderly, nonviolent protests merely because they disagree with the content of the speech or because they simply fear possible disorder. First Amendment protections, furthermore, are especially strong where an individual engages in speech activity from his or her own private property.
That said, First Amendment protections, while broad, are not absolute. It is axiomatic, for instance, that government officials may stop or disperse public demonstrations or protests where “clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears.” Indeed, where a public gathering threatened to escalate into racial violence and members of a hostile crowd began voicing physical threats, the Supreme Court expressly sanctioned police action that ended the demonstration and arrested the speaker, who defied police orders to cease and desist. The police, the Court reasoned, were not “powerless to prevent a breach of the peace” in light of the “imminence of greater disorder” that the situation created. (Cites Omitted).
A word on “content neutrality:” Law enforcement as well as local laws that may impact First Amendment Rights must be content neutral. Thus, if the local ordinance related to parades were to grant a parade permit to the Catholic Relief Association that will promote a message of Christianity, the city or town could not deny a permit to an anti-Christian group that was promoting a vile anti-Christian speech. Essentially, you cannot punish or treat unequally based on the message.
A word on “Heckler’s Veto:” There have been cases where a single person or a small group of people have protested with hateful and vile speech that brings in a large group of counter-protestors that begin to threaten violence against the small group. In these instances the simple law enforcement response would be to safely remove the small group to end the threat. Simple is not always Constitutional and the courts have made clear that such action would violate the rights of the small group.
First Amendment is not Absolute and Time, place, manner restrictions: All law enforcement leadership and local governments should recognized that the First Amendment is not absolute, for example a person cannot shout fire in a crowded movie theatre. Additionally, reasonable time, place, and manner restrictions can be put on protests.
Some Cases on Law Enforcement Tactics:
Abay v. City of Denver, 2020 U.S. Dist. LEXIS 99523 (D. Colo. Jun. 5, 2020). (Police use of chemical agents on demonstrators).
In a recent case, Plaintiffs brought a request for a temporary restraining order which sought to enjoin the Denver Police Department and other police agencies from using chemical agents and certain forms of physical force against demonstrators who are taking part in protests related to the death of George Floyd. Specifically, Plaintiffs challenge the DPD’s use of the following chemical agents against demonstrators: mace/oleoresin capsicum spray or mist/pepper spray/pepper gas, tear gas, skunk, inert smoke, pepper pellets, and xylyl bromide. Plaintiffs further alleged that DPD had violated their First Amendment rights of free speech and their Fourth Amendment rights to be free from excessive force by the police.
The Court noted that it had reviewed video evidence of numerous incidents where police had used pepper spray on individuals who appeared to be standing peacefully. The Court further noted that Plaintiffs had cited video evidence where projectiles were used against journalists who appeared to be documenting the protests. Plaintiffs also cited video evidence where projectiles struck a peaceful protestor and a “medic” protestor who went to assist. Plaintiffs also cited video evidence which documented four incidents where police projectiles struck the eyes of peaceful protestors and resulted in facial fractures in vision loss. Lastly, there was video evidence presented of three incidents where officers shot pepper balls or threw tear gas into peaceful crowds.
The Court granted the Plaintiffs’ Motion, and temporarily enjoined the DPD and other assisting agencies “from employing chemical weapons or projectiles of any kind against persons engaging in peaceful protests or demonstrations.” Additionally, the Court temporarily enjoined the DPD and other assisting agencies “from using chemical weapons or projectiles unless an on-scene supervisor at the rank of Captain or above specifically authorizes such use of force in response to specific acts of violence or destruction of property that the command officer has personally witnessed.”
Further, the Court ordered the following: 1) kinetic impact projectiles “KIPs” and other projectiles may never be targeted at the head, pelvis, or back; 2) KIPs and other projectiles shall not be fired indiscriminately into a crowd; 3) Non-Denver officers shall not be permitted to use any force or weapon beyond what DPD officers are authorized to use; 4) all officers at the demonstration must have their body worn camera functioning at all times and with no obstructions; 5) chemical agents or irritants can only be deployed after an order to disperse is issued; and 6) all orders to disperse must be followed by adequate time for dispersal and officers must provide safe means of egress. If it appears the dispersal order cannot be heard, then the order must be repeated prior to the use of any chemical agents or irritants.
Campbell v. City of Oakland, 2011 U.S. Dist. LEXIS 172040 (N.D. Cal. Dec. 12, 2011).
This case arises out of the “Occupy Oakland” protests which began in October 2011. On the afternoon of October 25, 2011, protests became violent. Defendants asserted that protestors assaulted officers by “kicking them in the legs, spitting at their faces, and throwing rocks, bottles with bleach and urine, and paint balls.” At one point, it became necessary to use tear gas to disperse a crowd of approximately 500 protestors who were surrounding a smaller group of protestors. In contrast, Plaintiffs contended that police beat a protestor who had been trapped by a crowd, and fired bean bags rounds, flash bang grenades and tear gas into assembled crowds without warning and in violation of policy. Later in the evening, the protestors convened at Frank Ogawa Plaza and a more intense confrontation occurred between police and protestors. Plaintiffs claimed that officers ordered dispersal before illegal conduct occurred, did not issue audible dispersal orders, and resorted immediately to forcible tactics. Defendants alternatively claimed that officers deployed force to protect police and sanitation crews from hostile protestors.
Another large-scale demonstration took place on November 2, 2011. Late in the evening, a confrontation between police and demonstrators occurred. Plaintiffs contended that “Oakland police again failed to give intelligible dispersal orders, used excessive physical force against some individual protesters, and fired projectiles, flash bang grenades, and tear gas indiscriminately into crowds and toward non-threatening individuals. . .” Defendants alternatively contended that around midnight, masked protestors went on a rampage and caused various forms of property damage. Defendants asserted that police responded surgically to these violent demonstrators. Approximately eighty demonstrators were arrested by police.
In analyzing Plaintiffs’ claims for a preliminary injunction, the Court first examined whether Plaintiffs would have a likelihood of success on the merits for their constitutional claims. Here, the Court noted that there were significant disputes regarding whether the Plaintiffs’ complained of incidents were violations of Oakland policy, whether these incidents constituted a pattern and whether these incidents were officially sanctioned. The Court next stated that Plaintiffs had not shown a likelihood of a great and immediate threat of future harm. In this regard, the Court explained that “defendants’ conduct on October 25 and November 2 was not part of a ‘standard pattern’ but rather, a strained response to exceptional circumstances.” Lastly, the Court explained that the balance of the equities and the public interest did not clearly favor Plaintiffs or Defendants. Here, the Court reasoned that Plaintiffs sought to protect First and Fourth Amendment rights whereas Defendants sought to protect the safety and property of Oakland citizens. These competing interests did not clearly favor Plaintiffs.
For these reasons, the Court denied Plaintiffs’ motion for a preliminary injunction.
Bernini v. City of St. Paul, 665 F. 3d 997 (8th Cir. 2012).
This case arose out of events which occurred on the first day of the 2008 Republican National Convention. After permitted marches had ended, a senior law enforcement commander order downtown St. Paul closed. After downtown was ordered closed, a group of people were marching down Shepard Road, and a police Neighborhood Response Team (“Team 36”) was ordered to this area to prevent entry into downtown. At around 4:30 p.m. a group of 100 people gathered at Shepard Road and Jackson Street and a smaller subset of the group began to cross the street. Officers ordered these individuals to back up and began to fire stinger blast balls. Officers contend that numerous objects were thrown at them.
The group of protestors and the officers then began to move west, and the size of the crowd grew to hundreds of people. Officers continued to deploy smoke, pepper balls, and chemical irritants to keep the crowd moving west. The officer in charge of the scene then decided to encircle the crowd in a park. After the crowd was contained, officers announced multiple times over a loudspeaker that everyone in the crowd was under arrest and ordered that everyone sit down and put their hands on their heads. Officers then attempted to determine who had been present at the earlier confrontation at the Sheperd and Jackson intersection. Officers eventually released about 200 individuals and arrested about 160 individuals.
Plaintiffs first alleged that officers violated their Fourth Amendment rights by making unlawful arrests in the park. The Court explained that prior case law, “demonstrates that a reasonable officer in St. Paul could have believed that the Fourth Amendment did not require a probable cause determination with respect to each individual in a large and potentially riotous group before making arrests.” The Court then stated that “it was reasonable, therefore, for an officer to believe that the group, as a whole, was committing one or more offenses under state law, including third degree riot and unlawful assembly.” The Court concluded that the officers were entitled to qualified immunity for the seizures.
The Court then addressed Plaintiffs’ claims that officers violated their Fourth Amendment rights by using excessive force. Plaintiffs focused their claims on Sergeant Henry, who was the lead sergeant in Team 36. Henry had testified that he used various non-lethal munitions at the Shepard and Jackson intersection and that his deployment of these munitions implicitly authorized the officers under his command to do the same. The Court held that Sergeant Henry was entitled to qualified immunity. The Court reasoned that the circumstances of the incident led officers to believe that the protestors were going to penetrate police lines and gain access to downtown St. Paul. In light of these circumstances, “Henry’s use and authorization to use non-lethal munitions to direct the crowd away from the intersection and toward a park where the crowd could be controlled did not violate clearly established rights.”
Martinez v. Smith, 2017 U.S. Dist. LEXIS 50451 (D. Ariz. Mar. 31, 2017).
On March 29, 2014, riots occurred in Tucson, Arizona after the Arizona Wildcats basketball team lost in the elite eight of the NCAA tournament. On the night of the riots, Officer Smith and Sergeant Humphries were working on the Tucson Police Department’s SWAT team. Officer Smith was assigned as grenadier and had an Arwen “less lethal system”, while Sergeant Humphries supervised the grenadier squad. When the game ended, crowds spilled from the bars into the streets, and the Plaintiff walked out to the front of the crowd where police had already assembled in a line in riot gear. Plaintiff was very animated and was running in and out of the crowd and the space between the police and the crowd. At one point, Plaintiff climbed on the bumper of a police car which officers were used to announce a dispersal order, faced the crowd, and raised his arms in the air. Once Plaintiff ran back towards the front of the crowd, Sergeant Humphries gave Officer Smith permission to safely engage Plaintiff. Officer Smith then shot Plaintiff from a distance of 30-40 feet with one Arwen projectile that struck Plaintiff on the front of his left leg, two inches above his knee. Plaintiff was eventually arrested by officers, and subsequently filed a lawsuit against the officers where he claimed that the use of the Arwen projectile against him during the riot constituted excessive force.
The Court found in favor of the officers because the Plaintiff had failed to establish that the officers violated a clearly established right. The Court stated that no reasonable juror could conclude that Plaintiff was not posing a risk to officers and others. The Court then highlighted the facts which the officers knew, and noted the generally dangerous conditions of the overall riots. The Court then detailed Plaintiff’s own actions, which included the following: Plaintiff was jumping and dancing in front of the crowd; Plaintiff jumped on the police car and stood on it; when Plaintiff got off the police car, he fled from Sergeant Humphries and ran back into the crowd; at the time Plaintiff was shot with the Arwen projectile, he was again standing in front of the crowd with his arms outstretched. Accordingly, Plaintiffs’ argument that force was unjustified because he was not posing a threat was rejected by the Court.
The Court also stated that “existing precedent would not have informed every reasonable official that shooting Martinez in the leg with nonlethal force would violate Martinez’s Fourth Amendment right to be free from excessive force.” Moreover, the Court then explained that in fact, “several cases have upheld the use of non-lethal force where individual crowd members openly defied police orders or directly harmed the officers.”
The Court therefore concluded that Sergeant Humphries an Officer Smith were entitled to qualified immunity.
Black Lives Matter Seattle-King Cty. v. City of Seattle, 2020 U.S. Dist. LEXIS 103346 (W.D. Wash. Jun. 12, 2020).
In response to the death of George Floyd on May 25, 2020, protests began in Seattle on May 29, 2020. These protests have been largely peaceful but in some instances violence has occurred. Plaintiffs have sued the City of Seattle alleging that the City has violated their rights by deploying, “‘less lethal’ weapons including ‘chemical irritants, batons, kinetic impact projectiles, and weapons intended to stun with light and sound.’” The chemical irritants deployed included tear gas and OC spray. Plaintiffs alleged that the use of these less-lethal weapons have deprived them of their right to protest and their right to be free from excessive force. Soon after filing the complaint, Plaintiffs moved for a temporary restraining order (“TRO”) seeking to enjoin the City from deploying chemical irritants and projectiles such as flash bangs and pepper balls.
The Court granted the Plaintiffs’ motion for a TRO and thus temporarily enjoined the City from “employing chemical irritants or projectiles of any kind against persons peacefully engaging in protests or demonstrations.” The Court further specified the order as follows: “This injunction includes: (1) any chemical irritant such as and including CS Gas (“tear gas”) and OC spray (“pepper spray”) and (2) any projectile such as and including flash-bang grenades, “pepper balls,” “blast balls,” rubber bullets and foam-tip projectiles.”
The Court then added that the Order “does not preclude individual officers from taking necessary, reasonable, proportional, and targeted action to protect against a specific imminent threat of physical harm to themselves or identifiable others or to respond to specific acts of violence or destruction of property.”
Further the Court ordered that, “tear gas may be used only if (a) efforts to subdue a threat by using alternative crowd measures, including pepper spray, as permitted by this paragraph, have been exhausted and ineffective and (b) SPD’s Chief of Police has determined that use of tear gas is the only reasonable alternative available. The Chief of Police may only authorize limited and targeted use of tear gas and must direct it to those causing violent or potentially life-threatening activity.”
Lastly, the Court ordered the following: “To the extent that chemical irritants or projectiles are used in accordance with this paragraph, they shall not be deployed indiscriminately into a crowd and to the extent reasonably possible, they should be targeted at the specific imminent threat of physical harm to themselves or identifiable others or to respond to specific acts of violence or destruction of property.”
Don’t Shoot Portland v. City of Portland, 2020 U.S. Dist. LEXIS 100801(D. Or. Jun. 9, 2020).
In another recent case, Plaintiffs Don’t Shoot Portland have alleged that the Portland Police Bureau (“PPB”) have violated their First and Fourth Amendment rights by using oleoresin capsicum “OC” and orthochlorobenzamalonitrile “CS” (collectively “tear gas”) during protests in Portland, Oregon. Plaintiffs filed a motion for a temporary restraining order to enjoin Defendant from using tear gas as a crowd control tactic.
The Court noted that evidence indicated largely peaceful marches without police intervention, but that in some instances officers deployed tear gas in response to individuals shaking fencing and throwing projectiles. There were also instances of officers deploying tear gas after individuals, within a larger crowd of peaceful protestors, threw water bottles and fireworks. Other evidence indicated that officers used tear gas without warning or provocations. Plaintiffs also cited to instances where tear gas was used against crowds where the crowds did not have avenues of escape. Further, Plaintiffs claimed that tear gas was fired at individuals who were trying to comply with police orders to leave certain areas. Defendants have a policy entitled “Crowd Management/Crowd Control” and on June 6, 2020 the Mayor enacted a further limitation of the use of tear gas which declared that “gas should not be used unless there is a serious and immediate threat to life safety, and there is no other viable alternative for dispersal.”
After consideration, the Court granted Plaintiffs’ Motion for a TRO and ordered the following: “That PPB be restricted from using tear gas or its equivalent except as provided by its own rules generally. In addition, tear gas use shall be limited to situations in which the lives or safety of the public or the police are at risk. This includes the lives and safety of those housed at the Justice Center. Tear gas shall not be used to disperse crowds where there is no or little risk of injury.”