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Handling Protesters, Part 2
From the Calibre Press Street Survival Newsline
Do you have to be spit on by protesters--& other key questions
In Part 1, we posed a dozen questions related to Legal Considerations in Managing Protests and Civil Disorder, derived from a panel on that topic sponsored by the International Assn. of Chiefs of Police (IACP).
See how well you scored, according to information presented by the IACP's panelists, Mary Claire McNaught, public safety attorney for the Winston-Salem (NC) PD and Daniel Schofield, chief of the legal unit at the FBI Academy in Quantico (VA).
The questions one more time:
1. While recognizing that Americans have more protection for free expression than probably any other nationality, what 4 general limitations can government (police) still place on public demonstrations?
2. What 3 criteria must be met by any restrictions placed on demonstrating?
3. Give examples of specific restrictions that might legally be imposed under these criteria.
4. Can you deny a group the right to protest based on a threat of violence associated with their demonstration?
5. What legal tactic can be used in advance to impose control over groups with bad reputations for causing problems with their demonstrations?
7. As a line officer, do you have to endure insults and spitting from demonstrators?
8. Name at least 3 liability risks you may face in conjunction with public protests.
9. Name 2 ways you can legally use videotape to your advantage?
10. Are demonstrations inside shopping malls legal?
11. Does the media have special rights at demonstration sites?
12. Can you charge protesters for the cost of protecting them?
Bonus Question: An American police officer is driving down the road and sees a lawyer walking on 1 side and Saddam Hussein walking on the other. Who does the officer hit first?
IMPORTANT NOTE: As with any legal advice, be sure to check with your local advisors to be certain that the principles and precedents explained here currently apply in your jurisdiction.
1. Authorities can limit public speech, and the correlative right to protest and demonstrate, to a reasonable time, a reasonable place and a reasonable manner. You'll often see this 3-part terminology in court decisions dealing with 1st Amendment freedoms. These restrictions apply to speech (and protests) in public areas like roads, sidewalks, parks or other sites that are traditionally open for citizens to gather, talk and demonstrate.
Protest can also always be restricted because of its relationship to illegal conduct. Demonstrators do not have the right to trespass onto somebody's private property to protest or to engage in assault or disorderly conduct or any other behavior that violates the law. When free expression becomes illegal conduct, it can always be restricted.
2. Any limitation has to meet these criteria:
a) It must be content neutral, meaning that you don't restrict only those groups whose message you disagree with. In enforcing a quiet zone around a hospital, for example, you are not trying to control the message put forth by demonstrators, you're trying to control the noise that interferes with people getting well. Content neutrality is THE most important factor in keeping restrictions legal.
b) Any limitation must be narrowly tailored to serve an important interest. To continue the quiet zone analogy, the zone must not extend out farther than it has to to accomplish its purpose. It can't be clear across town where it has no reasonable relation to the hospital it supposedly protects. In other words, imposition of a restriction has to closely match the reason for it.
c) Limitations must ALLOW FOR ALTERNATIVES. If a person or group is restricted from protesting 1 place, they should have ample opportunity to demonstrate some other place in town.
3. If some group wants to protest across an interstate highway because they think that will have the biggest impact, you can easily deny that. In a recent federal case, the 11th Circuit Court of Appeals supported a city in Alabama that completely banned tables set up on city sidewalks to distribute literature because they were considered too disruptive to pedestrians. You can deny the right to protest during RUSH HOUR. Many cities have statutes that prohibit demonstrations within a certain distance of a CHURCH during hours of service or shortly before or after because of anticipated traffic problems.
You can also sometimes limit the SIZE of a protest group. If a group of 500 wants to demonstrate in a park that can legitimately accommodate only 100 persons, you can stop that.
Court cases suggest that you CAN'T have a complete ban on protesting in a residential neighborhood. But you can prohibit a group from focusing on a particular resident (called "focused residential picketing"). And you can stop groups from marching through residential neighborhoods in the middle of the night when the noise would disrupt privacy.
In imposing restrictions, just remember the criteria itemized in #2. You must apply objective, content-neutral limitations based on some important consideration.
4. YES, but to do so you have to meet a VERY HIGH STANDARD.
Say you want to deny the Ku Klux Klan the right to march in your town because you're worried that you won't be able to protect against a real bloodbath. Courts have said that the police (or government in combination with the police) must prove that maintaining public safety and order is beyond the reasonable ability of your officers and administrators.
The courts will ask why you couldn't get help from neighboring jurisdictions or other sources. They will ask specific reasons why your doubt of maintaining public order is accurate. They will take a very close look because obviously a lot of jurisdictions would like to say, "Hey, we just can't be safe, so you can't come here."
It is very rare that a jurisdiction is able to place a complete ban on a group's ability to protest. You might be able to move the protest, or limit the size or delay it until you have time to recruit extra help, but a complete ban will very rarely be upheld.
5. If you are faced with a problem group, like the Ku Klux Klan or Operation Rescue, wanting to demonstrate in your community and you are concerned about your ability to maintain order because the group is known for not demonstrating peacefully and legally in other communities, you can probably obtain an INJUNCTION from a local judge that will allow you to impose specific, advance limitations on the group's right to protest/demonstrate. For example, an injunction might specify that protesters can't carry weapons, even if they have permits that ordinarily enable them to do so.
This legal tactic became a very useful arrow in law enforcement's quiver with the U.S. Supreme Court's sanction in the case of Madsen v. Women's Health Center [114 S.Ct. 2516 (1994).] In this important case, the Court upheld for the first time the use of injunctions in regards to demonstrations.
A local judge will likely be sympathetic with your position because he is not going to want his own community ripped apart by the group you're concerned about. Even if it turns out later that the judge shouldn't have issued the injunction, you and your department are fully protected from liability so long as you are acting pursuant to his order.
6. Your LOCAL PROSECUTOR. If the prosecutor doesn't agree with you on the arrests you make, he is going to abandon you when you get ready to go to trial. Be sure he participates in the planning and helps you evaluate the statutes that you may want to use as foundations for your arrests. Your department legal advisor or city attorney can guide you regarding civil liability issues, but a prosecutor's input is important where possible criminal charges against demonstrators or counter-demonstrators are concerned.
Particularly if you haven't had cause to use them for awhile, take a close and critical look at your statutes on disorderly conduct, public assembly and noise (noise can be an especially useful ground for arrest in protest situations, if the statute is specific enough). In some cases, these statutes are old, confusing and vague. The language would no longer pass court scrutiny. With sufficient notice, it may even be possible to get weak statutes updated before the protest goes down.
Once a prosecution strategy is agreed upon, officers must be informed as to what's permissible arrest-wise. When Winston-Salem PD anticipates an event with potentially troublesome protesters, officers are given a booklet clearly delineating elements of the non-routine offenses they might be called upon to arrest for. They are then trained on what they will need to show in order to get a conviction for each offense.
Take full advantage of what your laws will let you do. Your prosecutor should be oriented to telling you what you can do legally, not just hammering at what you can't do.
You also want to review physical control tactics that may be appropriate in handling demonstrators. In many departments, the command staff was trained in the '70s, while line officers were trained in the '90s. You don't want commanders encouraging an obsolete "stomp-and-drag" approach--and then later using inflammatory terminology like that in court--when more currently trained officers may know of more effective, lower profile options.
7. INSULTS, YES; SPITTING, NO.
Where exchanges between civilians are concerned, courts generally have ruled that when 1 person is right up in the face of another, close enough so that fighting could occur, and that person speaks directly to the other in an insulting, threatening, provoking manner, such speech can be considered "fighting words" and can be cause for arrest. [For an explanation of "fighting words", see Newsline No. 68.]
However, law enforcement officers, unlike ordinary citizens, are generally expected because of their professional training to restrain themselves in the face of insulting language. So if you're policing a demonstration and 1 of the protesters gives you obscene gestures and nasty talk, you're expected to have a thicker skin and not punch him in the mouth.
Spitting's a different matter. A protester even preparing to spit is committing assault and can be arrested. In 1 instance, a handcuffed subject was being walked to a police vehicle when he made a gurgling sound as if getting ready to spit. An officer immediately delivered when he later called "a straight-arm stun technique designed to redirect the head," injuring the subject but preventing officers from being spit on. A federal Court of Appeals dismissed a lawsuit against the officer, reasoning that no police officer should be left defenseless against someone preparing to spit on him and that objectively reasonable force to prevent the spitting does not violate any legal standard imposed by the constitution.
8. One of your highest liability risks--a very, very high risk--is FALSE IMPRISONMENT or FALSE ARREST, stemming from an arrest made without probable cause. This can happen easily in a confusing demonstration situation, where you have many people engaged in various types of behavior and quite likely struggling with you. Adequately documenting who in the crowd actually did what and that you had a specific reason for everyone you took in becomes difficult, especially in mass-arrest situations.
EXCESSIVE FORCE also remains a concern. While courts are becoming more and more cognizant of law enforcement realities, they still hold officers to a fairly high standard. If you're accused of excessive force, you will need to be able to articulate why you felt the level of force you used was required.
There may also be claims that you deprived would-be demonstrators of their CIVIL RIGHTS by imposing unreasonable limitations that made the protest ineffective. Your actions will then be tested against the criteria of objectivity itemized in #2. Courts will give great latitude for your regulation of free speech in public places but they do not look favorably on totally eliminating it just because it is inconvenient, unpopular or expensive, all of which it often is. If you effectively eliminate a person's chance for public expression, you need a very strong reason for doing so.
In some state courts, the accusation of FAILURE TO PROTECT is beginning to be raised. Here the court will look for evidence of a "special relationship" between you and the protesters that gives you an exceptional need to protect. Be careful not to make promises, such as: "Yes, you can demonstrate safely because we'll certainly have enough police officers there" or "We'll be fully equipped and fully prepared to protect you, you don't have to worry about a thing."
Another liability area for administrators that has started to emerge in some states is FAILURE TO PROTECT YOUR EMPLOYEE. An officer who gets injured wants to collect beyond workmen's compensation and argues, "You [the administrator] knew perfectly well you were expecting 2,000 Klansmen and you put me out there with 3 other officers and said, 'Here, guys, hold the line'--without adequate training, proper support, proper communications or proper equipment to handle the job, knowing full well that there was potential for harm to me."
9. Videotape can help you prepare tactically for managing a protest and help you defend yourself afterwards against charges of excessive force.
If you know a particular group is coming to town, contact other jurisdictions where these protesters have been previously and ask to borrow videotapes of their demonstration. Some groups try deliberately to provoke inappropriate responses from officers so they can sue or at least so they can get more publicity for their cause. Seeing some of their tactics ahead of time can help you plan your actions better. You may also be able to go on the Internet and find out what other agencies have learned when dealing with the group you're facing.
It's a good idea, incidentally, to practice and videotape crowd control tactics in role-playing exercises, just as you practice DT moves. Make and critique your mistakes with each other so you don't make them in public. Field-test your equipment beforehand, too.
If you use pain compliance or leverage techniques (like some we demonstrate in the Calibre Press Street Survival Seminar) to move people who are blocking an area, you are likely to get allegations of improper force afterwards. If the event has been taped, you can show in court that you used only an amount of force reasonably necessary to get the job done.
Departments and officers win almost all these force cases, unless the force used was clearly outrageous. More and more judges recognize that the way to evaluate an officer's use of force is to put themselves in that officer's shoes. They recognize the officer is in a tense, rapidly evolving, often dangerous situation and that he has to make split-second decisions. Even the Supreme Court has said that not every push or shove that an officer engages in that turns out to be unnecessary violates the law. There has to be room for understanding the dynamics of force confrontations...and videotape can help make the circumstances clearer.
Videotapes you make can be used for future training, too.
10. Generally, NO. Privately owned shopping malls are not considered to be public forum areas (like streets, sidewalks and public parks are) for purposes of 1st Amendment activity. People may have the right to protest outside the mall on public property, but you can keep demonstrators out of privately owned parking areas and the mall interior completely, if owners of the mall don't want people protesting there.
The same can be true regarding private universities. If it's private property it's not public-forum property. Even public buildings, like schools and police stations, are not normally open for demonstrations.
In July, 1997, a MN judge ruled that demonstrations must be permitted inside the Mall of America, the nation's largest, near Minneapolis. But that was because government funds were used in its construction. However, the judge said that the mall has the right to determine the time, place and manner of demonstrations and ruled that some animal-rights protesters must face trespassing charges because they failed to get permission from the mall before demonstrating inside last spring.
11. NO. From a legal standpoint, the media does not have any right of access to any area of public property or to your briefings or planning sessions that the public in general doesn't have. If you set up a no-person zone, with access barred by a police line, for example, the media has no legal right to say, "We're the media, we can come in there." You may decide to let them in, to give them extra access, but that's absolutely your choice.
Sometimes to cover big events, news helicopters will fly over areas where police don't want them for safety reasons. In LA this has been dealt with on occasion by a call to the FAA. The FAA, in turn, has declared the area in question a restricted zone, and news pilots who don't get out of there are subject to losing their licenses.
12. Not really. You can charge the group, but only for the cost their activities directly create. Say you have 50 Klanspeople who want to march down the middle of Main St., crossing 4 intersections. You can charge the Klan for traffic control officers at each intersection (including extra help you bring in from other jurisdictions), provided that you likewise charge other groups comparably for the same service. You can charge the cost of clean-up, but only for the clean-up activities you can actually tie to the activities of the protesting group, not those required because 2,000 onlookers trashed the area. That all has to be absorbed by your community as a cost of doing business in a democracy.
Likewise, you cannot charge protesters for the possible reaction of those observing their protest. In the case of 50 Klanspeople and 2,000 onlookers, if most of your extra resources are to keep the onlookers from bashing in the heads of the marchers, you can't charge for that protection.
Of course you can charge an administrative processing fee for a parade permit before a march-type demonstration is held, provided the fee is set and administered in a non-discriminatory, content-neutral manner. In other words, you must charge the Girl Scouts who want to stage a parade across town the same permit fee as you do the KKK. You don't favor 1 group over another because you like 1 group and don't like the other.
You can have a provision for indigent groups if you wish, but they must meet an objective test for indigence before the fee can be waived.
Bonus question: The answer is obvious. The officer hits Saddam Hussein first because it's always business before pleasure.