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Thursday, November 20, 2014

Rules of engagement, ctd.

In looking at the rules of engagement offered by leaders of potential Ferguson protests (calling themselves the "Don't Shoot Coalition") as a whole, the central question becomes one of defaults. The default, they argue, must be that this is a peaceful assembly and expressive event that police should allow to go forward without interference unless there is genuine indication of significant threats to public safety. And even then, the default should be that those threats are from individual lawbreakers, who should be dealt with, and not the demonstration itself or the great mass of lawful speakers and speech.

Of the 19 proposed rules, consider: # 16 (allow "every latitude" for free assembly and expression); # 15 (tolerate minor lawbreaking); # 14 (tolerate an expansion of the scope, size, or duration of the protest); # 13 (figure out alternate routes for foot and street traffic); ## 7-8 (not military gear or equipment--this is one the police flatly rejected); # 18 (no attempts to preemptively or pretextually stop protesters from organizing and beginning). This is not to mention more common-sense rules, such as be professional and don't use excessive force (# 17--we  really need to state that rule?)

We can disagree over particulars. But the tenor seems right to me: Start from the presumption that this is lawful and deal with it when it isn't, rather than the other way around.

Posted by Howard Wasserman on November 20, 2014 at 09:40 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


"If the police find the risks of police work to dangerous they should find another line of work. Not seek to elevate their own interests at the expense of the public's."

I love the ole' "find another job argument". Are the police supposed to accept every potentially dangerous situation as "part of the job"? I suppose the same logic applies to women whose employers choose not to cover birth control in the health care plan, or waiters/waitresses who want the state to pass bans on smoking in restaurants. Clearly, they should just find another employer or line of work to secure those accommodations.

And what personal interests are police officers elevating at the expense of the public by wearing riot gear? They're securing a modicum of additional personal safety in a manner that has zero impact on any individual protestor. What is the price to the public? Is it somehow offensive?

Think about this: every protest has a counter-protest. The KKK already announced that it plans to be in Ferguson, and I am sure it will not be the only racist group there. There is a very good chance that this will become violent, but I do not think it will be because the police are wearing riot gear.

Posted by: TJM | Nov 20, 2014 5:28:42 PM

Actually, I think the first few days of the protest show the opposite effect--the violent behavior by protestors started on Sunday 8/9, the day after Michael Brown was killed. Protestors looted businesses, injured three police officers, and set fire to a gas station that eventually burned down. The next day (Monday 8/10, the same day that Michael Brown's mother requested the protestors to stop the violence) was when the riot gear and armored vehicles came out, which was a direct response to the violence of the previous day. Also, I disagree that the questionable tactics "evaporated" when the state police showed up. I used to live in that area and still have many friends and family there; there was still plenty of looting, vandalism, and general destruction while the state police were in charge.

I suppose I fundamentally disagree with the statement that "Riot gear and militarization of policing generate protestor violence." I have been in demonstrations before in which police were present--for the life of me, I cannot recall what they wore or how they conducted themselves. Perhaps they were in regular uniforms, and I don't remember because there was nothing striking or memorable about the way the police acted. Regardless, I am positive that I gave zero consideration to how they behaved in deciding how I was going to act. Of course, that was probably because I had no intention of breaking the law.

Posted by: TJM | Nov 20, 2014 5:12:24 PM

If the police find the risks of police work to dangerous they should find another line of work. Not seek to elevate their own interests at the expense of the public's.

Posted by: brad | Nov 20, 2014 4:03:02 PM

The question isn't "why shouldn't" police be able to dress in riot gear. Merely dressing in such gear isn't a constitutional violation or illegal. The question, which Howard continually is asking, is what is the best way to police the post-grand jury landscape. And how police do their job informs how protestors do their thing. Riot gear and militarization of policing generate protestor violence. Witness the first few days of the first Ferguson protests. Protestors engaged in questionable tactics when faced with militarized police. When the state police took over, without riot gear and with soft policing, questionable protestor tactics evaporated. Then when, inexplicably, the police re-militarized, questionable protestor conduct re-emerged.

Posted by: Steven R. Morrison | Nov 20, 2014 3:59:45 PM

By most estimates, the protestors will vastly outnumber the police. Why should they not be able to dress in riot gear in case a violent crowd (or even a violent group of 4 people) decide to assault one of the officers? I agree with giving the protestors latitude, but why does that latitude impact how the police take precautions for their own safety in policing a demonstration that could very possibly be hostile (even if not violent) toward them?

Also, both sides should have a very clear definition of what is meant by "minor lawbreaking".

Posted by: TJM | Nov 20, 2014 1:51:01 PM

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