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Wednesday, September 17, 2008

Post-mortem of the RNC

Tommy Crocker at CoOp discusses a New York Times report that St. Paul officials are beginning a post-mortem analysis of police conduct during the Republican National Committee earlier this month. Two former prosecutors will lead an investigation into the overall handling of convention protesters. More than 800 people were arrested (including more than two dozen credentialed journalists) and dozens more handcuffed but not charged. In addition, there were multiple incidents in which police used non-lethal force to disperse crowds.

Tommy seizes on a quotation from a police spokesman that journalists must decide whether to get arrested or to cover events from a distance as reflecting a new government insistence on "democratic distance," on space between speakers and those to whom they are speaking. This demand for space is present in a lot of recent free-speech controversies--restrictions on protests and protest movement, protest pens, floating buffer zones, distance restrictions on protests in certain locations, etc. Public speech at close range becomes dangerous under a concern (excessive, I believe) for disturbances of public order and offense to listeners. But Tommy suggests this is inconsistent with the First Amendment principles recognized in Cohen v. California that "verbal tumult, discord, and even offensive utterance" are necessary and welcome part of public discourse, including discourse occurring at close range.

Tommy also notes that St. Paul's handling of the convention mirrors the response of every city to a major-event protest since Seattle in 1999: Protect property and control crowds by whatever means and deal with the consequences later, usually by settling any civil-rights lawsuits and b "studying" the events post hoc and promising to do better the next time (and when will St. Paul have another politically charged gathering of this size?). But I continue to argue that the liability structure of § 1983 liability drives this approach. Constitutional rights are not worth that much money and damages may be relatively small, if not even nominal only. Claims that police stopped individuals from marching or protesting by dispersing or redirecting the crowd (in violation of the First Amendment) or that police temporarily seized them (without formal arrest or prosecution) will not produce large damages awards. Claims by those who were arrested and booked might be worth a little more. Claims that the city's pre-planned protest limitations (permit requirements, protest pens, distance rules, etc.) violated the First Amendment probably will be worth only nominal damages. Real excessive force claims with physical injuries (if any--I have not read reports) might be worth a lot more. In addition, the City will not be liable for individual arrest or crowd-control decisions that officers made on the fly, absent some link to formal crowd-control policies governing, for example, the use of non-lethal force or the choice of crowd-dispersal strategies. Finally, officers will be able to argue in many situations that, given the facts at hand, their conduct was not what a reasonable officer would have known to be unlawful, therefore they are entitled to qualified immunity.

But given this liability scheme, what incentive does St. Paul (or any city) have to seek, at the outset, the constitutionally best balance of speech and public order? More precisely, what incentive does St. Paul have to follow the ordinary law-enforcement model: Risk that protesters will get out of hand and break the law (and possibly cause substantial personal and property damage) and react by arresting those who do for their actual law-breaking? It is easier and potentially cheaper to limit public protests (and any wrongdoing that may come from those protests) and pay the limited damages (or settle) after the fact.

Posted by Howard Wasserman on September 17, 2008 at 10:16 PM in Constitutional thoughts, Current Affairs, Law and Politics | Permalink

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One of Prof. Crocker's earlier posts notes an even more important fact affecting the city's incentive to ensure the legality of its law enforcement methods. St. Paul bought a liability insurance policy, so it doesn't face the expense of lawsuits, settlements, and judgments.

[On the other side of the analysis, my understanding is that the protest restrictions were challenged ahead of time and approved by the courts. Moreover, most (if not all) of the arrests and temporary detentions occurred when the protests either turned violent, or violated the restrictions (e.g., by overstaying their permit times by several hours, in order to be seen and heard by arriving delegates and/or block the delegates' access to the convention.]

Posted by: JP | Sep 18, 2008 1:11:14 PM

Another perspective (from one who used to be involved in planning for mass protests) -- At least since the WTO protests in Seattle, it has been a major aim of many protest groups to "shut down" the cities in which the protests are held, usually by illegally occupying public streets and sidewalks. Peaceful protests garner little media attention, but violent "takeovers" garner a lot; and publicity is what these protesters seek. The illegal occupations are often accompanyied by substantial property damage, as well as a variety of economic and other costs inflicted upon those who cannot conduct their own business as a result of these illegal activities. Of course, the protesters themselves are effectively judgment proof -- they are unlikely to be held accountable for the damages that they will inflict on others. Under these circumstances, when, as in St. Paul, the authorities have reason to believe that an illegal occupation is planned, it should be unsurprising that the police plan aggressive measures to keep the city open. And given that the First Amendment "value" of these protests could plausibly be thought insubstantial as compared to the damages inflicted upon others, can we really be surprised that the incentive structure created by section 1983 damages law does not offer windfalls for these protests?

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Sep 18, 2008 2:25:35 PM

Thanks, Howard. Great post. I completely agree with your assessment of 1983. I think Larry has identified another aspect of the issue: the fact that there can be First Amendment values on both sides when one confronts groups who wish to "shut down" other democratic activities. Such attempts to "shut down" operate as a "heckler's veto" on others' speech. The remedies problem, however, does not arise as a result of efforts by the police to act as "fair minded parliamentarians" to ensure that the speech by some does not drive out the speech of others; rather, the problem derives from the indiscriminate use of police power to drive out all other, non-heckler, voices from the public sphere (overbreadth). As you rightly identify, 1983 does not create sufficient incentives for the police to be more discriminating by targeting only the hecklers and not the bystanders, journalists, or other peaceful democratic participants. It's far too easy to arrest them all and let God sort them out later, so to speak.

Posted by: Tommy Crocker | Sep 18, 2008 10:10:47 PM

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