The First Amendment of the U.S. Constitution guarantees “the right of the people peaceably to assemble.”1 Throughout U.S. history, this liberty has shielded public assemblies and contributed to positive change. Public protests haven’t always been peaceful, however. Large crowds and high emotions can be a volatile mix, as evidenced by instances of riot, arson, and mass murder. Public safety officials have a twofold responsibility: preserve the right to peaceful protest while protecting people and property from harm. Modern developments complicate this dual mission, but experience and judicial precedents still provide a sound framework for public order policing. To both preserve assembly rights and keep the peace, authorities must utilize a layered strategy emphasizing communication, contingency planning, intelligence, and objectively reasonable force.
Key Equities
The right to assemble has made the United States better. For example, in 1833, abolitionist leaders gathered in Philadelphia, Pennsylvania, to form the American Anti-Slavery Society.2 Within 30 years, the expanding American Anti-Slavery Society helped end slavery in the United States.3 In 1913, the National American Woman Suffrage Association marched peacefully through Washington, DC, reinvigorating an important debate and contributing to the passage of the 19th Amendment granting women the right to vote.4 In 1932, the “Bonus Army” of World War I veterans occupied the National Mall to demand certain wages. The 40,000 veterans didn’t achieve their goals, but their peaceful protest influenced elections and contributed to the 1944 G.I. Bill providing landmark benefits for millions of World War II veterans.5; More recently, in the 1960s, nonviolent protests organized and led by Dr. Martin Luther King Jr. contributed directly to the passage of the 1964 Civil Rights Act and the 1965 Voting Rights Act.6
Sadly, public assemblies have also led to death and destruction when people’s reactions to heated issues exploded. In 1863, in New York City, angry protests of Civil War draft laws exploded into mob violence targeting government buildings and attacking black citizens. The violence raged for three days—more than 100 people died and at least 50 buildings were destroyed before the state militia and U.S. Army troops restored order.7 Less than a decade later, in New York City, parades of Irish Protestants clashed with Irish Catholics despite heavy police and National Guard precautions. The Orange Riots left 8 dead in 1870 and more than 60 in 1871, including 3 National Guards personnel.8 More recently, following the 1992 acquittal of police officers charged with beating a black motorist, a small protest detonated into six days of interracial rioting in Los Angeles, California. After 60 people were killed and 7,000 acts of arson caused over $1 billion in damages, the destruction ended with a massive intervention by the California National Guard, the U.S. Army, and the U.S. Marine Corps.9
Critical Questions
These historical examples demonstrate the quandary of public assemblies. On the one hand, they’re avenues for important social discourse that often lead to important breakthroughs. On the other hand, such assemblies represent staggering public safety challenges. Overwrought protests can rapidly become deadly riots. As with other important rights throughout U.S. history, the government has debated the tools and authorities to balance public assembly and public security. Recent protests regarding racial equity, some of which turned violent, have reinvigorated this historic debate. Organizations like Amnesty International emphasize the right to protest. Asserting this liberty is “under attack and must be protected,” Amnesty International maintains militarized police agencies increasingly misuse force. While acknowledging the need for security, they argue police should not interfere with a protest unless there is a legitimate threat to public safety. When police must act, the group states intervention must “do more good than harm and must be the least rights restricting option.” Further, the civil rights group asserts police use of surveillance invades privacy and infringes on the right to assemble by intimidating people, causing them to stay away from protests.10
Police organizations agree with many of the key points raised by Amnesty International and similar groups. Noting the duty to both maintain public safety and protect demonstrators’ rights, the Police Executive Research Forum (PERF) also emphasized police actions must be “proportional to the actions and mood of the crowd.” PERF stresses communication with demonstrators and tactics for minimizing use of force.11 This apparent philosophical concurrence masks difficult questions, however. For example, when is there a “legitimate threat” to public safety? If demonstrators block a road or a business, does police intervention to reopen the right of way “do more good than harm” in the community? If protestors resist such an intervention by throwing rocks at officers or breaking windows, what “proportional response” is warranted?
Relevant Case Law
Given the significance and constitutional nature of these questions, it’s not surprising U.S. federal courts have weighed in to balance assembly rights and public order. For example, after carrying a sign in a peaceful protest, local union president, Byron Thornhill, was arrested and convicted under an Alabama law banning picketing. In 1940’s Thornhill v. Alabama, the U.S. Supreme Court ruled the police actions unconstitutional because they had an overbroad effect. As employed, the arrest and conviction not only restricted violent actions or slanderous speech, but also imposed sanctions “on peaceful and truthful discussion of matters of public interest.”12 Also in 1940, the U.S. Supreme Court overturned the conviction of a Jehovah’s Witness acting without a required solicitation permit. The Cantwell v. Connecticut ruling established that authorities could pass statutes to maintain public order, but those laws could not be implemented to suppress “free communication of views” that did not cause bodily harm to anyone.13 Together, these rulings established the “overbreadth doctrine,” which prohibits the use of public order laws to limit peaceful speech and assembly. Importantly, the court did not invalidate the statutes in question. Instead, the rulings established that public order laws can be passed and used to regulate violence, true threats, trespass, slander, or vandalism but not to limit speech or assemblies with which someone in authority might simply disagree.14
“Police use of force shouldn’t be evaluated under 14th Amendment due process rights, but rather under Fourth Amendment protections against unreasonable search and seizure.”
Closely related to the overbreadth doctrine, the U.S. Supreme Court has also established the “chilling effect” test. In 1964’s Baggett v. Bullitt and 1965’s Lamont v. Postmaster General and Dombrowski v. Pfister, the court struck down regulations and laws likely to intimidate citizens from legitimate exercise of First Amendment rights. Balancing this test in 1972’s Laird v. Tatum, however, the U.S. Supreme Court dismissed a case brought by civil rights activists invoking the “chilling effect” a military intelligence program might have on fellow activists. Declining to place an injunction, the court observed the activists, who identified themselves quite publicly, were clearly not chilled from exercising their First Amendment rights.15
In 1989, the U.S. Supreme Court established a critical framework for balancing police actions and individual civil rights. In Graham v. Connor, the court evaluated police officers’ arrest of a diabetic man rushing from a convenience store. The court determined police use of force shouldn’t be evaluated under 14th Amendment due process rights, but rather under Fourth Amendment protections against unreasonable search and seizure.16 Applying this standard, the court established police actions during potentially dangerous situations can’t be judged with the benefit of hindsight and a safe perspective. Instead, police actions must be objectively reasonable given the information available to officers in the moment. Noting they weren’t comprehensive, the court established “Graham factors” for such evaluations: an officer’s understanding in the moment of the severity of the crime; the immediacy of the threat; the presence of active resistance; and attempts by subjects to evade or flee. Collectively, these factors help establish whether a governmental interest compels an intrusion on an individual’s civil rights.17 With Graham v. Connor as precedent, U.S. federal courts have confirmed objectively reasonable tools and tactics during public order policing operations may include tear gas, horse-mounted officers, and skirmish lines.
Modern Twists
The fact a tool or tactic may be used doesn’t make it a best practice to do so. As demonstrated by criticisms of police response during heated, sometimes violent, protests in 2020 and 2021, members of the public increasingly expect police agencies to prevent acts of violence while also preserving the right to assemble.18 Modern factors complicate these goals. Technological innovations and global commerce have brought the world closer together, upending economies and social institutions. Protests increase in times of social change and upheaval. Perhaps not surprisingly, between 2006 and 2020, significant protests doubled worldwide and tripled in North America.19 While creating opportunity and change, globalization has also contributed to extremist movements.20 A recent study by the Center for Strategic and International Studies indicates these trends have come together. In 1994, just 2 percent of terrorist attacks and plots in the United States occurred during public demonstrations. In 2020 and 2021, respectively, 47 and 53 percent of known terrorist attacks and plots occurred at public demonstrations.21 In other words, extremists are increasingly using protest crowds as covers to enact or to inspire political violence.
Technology has also compounded the challenge. Modern protests often have little formal leadership structure. Instead, many protests are organized on Internet forums, some of which are anonymous. This creates challenges for law enforcement liaison officers seeking to build communication and trust.22 Analysis of violent protests indicates extremists use social media tools to dehumanize opposition and the police, issue calls for violence, recruit like-minded individuals, adjust tactics, and avoid arrest.23 These network-enabled mobs, often consisting of people unknown to one another, can have huge security impacts. For example, vandalism and arson committed during widespread racial justice protests in the United States in 2020 are estimated to have caused between $1 and $2 billion in property damage.24 Estimates for property damage associated with recent protests in France indicate over $1.1 billion in losses.25
Also creating challenges for public order police leaders is the growing rate of counterprotests. When ideologically opposed groups meet in polarized, emotional street protests, the potential for clashes escalates.26 The violent potential of these volatile situations has been demonstrated repeatedly. During a clashing demonstration in Charlottesville, Virginia, in 2017, a right-wing extremist drove a car into a crowd of counterprotestors, killing one and injuring dozens.27 Following a clashing rally in Portland, Oregon, in 2020, a left-wing extremist stalked a right-wing rally participant, then shot and killed the man in the street.28
The potential for death and destruction during public assemblies prompts an instinctive reaction to increase security measures. However, studies indicate officers in riot gear and the use of crowd control force often escalates conflict and destruction.29 Perhaps not surprisingly, legislative bodies have attempted to improve police performance by establishing guidelines and standards. For example, in 2021, the California legislature updated Law Enforcement Agency Regulations Section 13652 to establish standards for the use of tear gas and nonlethal kinetic energy projectiles sometimes used to disperse crowds. Reflecting past research, the revised law requires that, prior to the use of such force, police must attempt de-escalation techniques, issue audible warnings, allow routes and opportunities for dispersal, target only individuals engaged in violent acts, and use force commensurate to the threats.30
These standards parallel the Graham factors established by the U.S. Supreme Court to assess objective reasonableness. Perhaps more problematically, the California law also prohibits the use of tear gas and projectiles solely in response to curfew violations, verbal threats, or noncompliance with police directives. These provisions seek to establish clear standards, but adhering to them during chaotic protests may not be clear-cut. For example, if de-escalation techniques are not successful in separating two crowds shouting threats and throwing objects at each other, at what point is tear gas objectively reasonable? Protesters engaged in noncompliance often shield crimes and violence, either wittingly or unwittingly. If crowd members link arms and refuse to budge while extremists engage in nearby arson, are tear gas or nonlethal kinetic rounds objectively reasonable? What if the crowd links arms to shield agitators throwing rocks at police officers? Or to shield vandalism such as broken windows or graffiti tagging?
Critical Strategies
To inform California police officers’ judgement regarding such questions, the California Commission on Peace Officer Standards and Training (POST) assembled a panel of experts. This team created POST Guidelines Crowd Management, Intervention and Control in 2022.31 This manual, along with The Police Response to Mass Demonstration: Promising Practices and Lessons Learned by PERF in 2018 and other research, emphasize consistent themes.32 In short, there are several strategic elements critical to both protecting the right to assemble and preserving public safety.
“Public order planning should incorporate intelligence derived through lawful investigation by Joint Terrorism Task Forces or other counter-extremist units”
First, comprehensive communication plans are essential. Crowd management plans tend to emphasize tactical communication measures such as sound trucks, social media updates, and liaison officers. These are vital tools for directing traffic, informing crowds, and conducting de-escalation.33 However, planners should expand this concept to include communication well prior to known or expected public order events. Coordinated, cohesive public messaging by political leaders, influential community members, and police executives can help build a shared expectation of behavior. Such communal agreement can help shape the flow of events and preserve police legitimacy by explaining actions in advance. For example, joint public messaging could make clear that based on past violence, police will maintain space between dueling factions or will check bags and confiscate shields, incendiary devices, and bear spray within a protest zone. Such advance public messaging must be tailored to local laws and community standards. Properly executed, these efforts build community consensus and reduce the likelihood force will be necessary.
Second, police planners must expand objectively reasonable options by building capabilities for targeted arrests within a crowd. Tools working in concert could include bicycle teams, observation posts, plainclothes behavior detection officers, and nimble tactical teams.34 Crucially, even in crowds formed through extremist online forums, criminal behavior is usually started by a few individuals. Research indicates some of these actors plan criminal behavior partly to prompt police overreaction and delegitimize authorities.35 Whether planned or spontaneous, the first criminal acts in a public assembly are both a challenge and an opportunity. If police use too much force to affect an arrest or stop destruction, other members of the crowd may become enraged and inspired to commit their own criminal acts. If officers are ineffective against initial crimes, then like-minded but less adventurous individuals may join in vandalism, trespassing, looting, arson, assault, or other offenses. Well-trained teams capable of making surgical arrests safely and efficiently give police leaders an essential tool to hold the middle course of appropriate, commensurate actions that prevent the spread of crime and violence.
Contingency plans and documentation are also critical strategic elements to public order policing. Heavily armed and armored officers in prominent view may escalate tension, but placing well-trained crowd control teams in readily available, discreet locations is fundamental should de-escalation and surgical arrests fail to curb violence. Similarly, planning should incorporate fire and medical resources to ensure care and mitigate harm. If events require crowd dispersal, force usage will be scrutinized in the court of public opinion and possibly in courts of law. Therefore, thorough documentation is a priority. Officers and analysts should fully document plans and contingency preparations made in advance. They should also capture known facts, actions of the crowd, de-escalation attempts, and efforts to protect civil liberties as events unfold.
Intelligence is the final critical element. As noted, extremists often make extensive plans to instigate or inspire violence at scheduled public assemblies. Accordingly, public order planning should incorporate intelligence derived through lawful investigation by Joint Terrorism Task Forces or other counter-extremist units. Such intelligence can help interdict and disrupt violent actors prior to public gatherings. Intelligence analysis can also be helpful when protests erupt from emotion or grief in response to an event. For example, analysis may help forecast the likelihood of protest-related violence in response to an unpopular trial verdict, corporate action, legislative action, or police use of force. Such forecasts can help police agencies communicate and prepare appropriately, including conducting joint public information campaigns, scheduling resources, and forming contingency plans.
Conclusion
Protecting the right to assemble while preserving public safety is a difficult job. History demonstrates the high stakes involved when this balance is lost. Today, technological innovations, rising extremism, and increasing violence and more costly destruction during protests have complicated this responsibility. However, judicial precedents requiring the objectively reasonable use of force still provide sound guidelines to police agencies involved in public order policing. By leveraging communication, targeted arrest capabilities, robust contingency plans and resources, and thorough intelligence, police agencies can reduce the likelihood of criminal activity and better mitigate any harm from violence that does occur. By applying these critical strategic elements, police and other public safety entities are best positioned to both preserve public safety and protect the essential, cherished right to assemble. d
Notes:
1Cornell Law School, Legal Information Institute, “First Amendment.”
2John G. Whittier, “The Antislavery Convention of 1833,” The Atlantic (February 1874): 166–172.
3Philanthropy Roundtable, “American Anti-Slavery Society,” Almanac of American Philanthropy (1833); Emancipation Proclamation, January 1, 1863 (Presidential Proclamations 1791-1991, Record Group 11, General Records of the United States Government, National Archives).
4Sheridan Harvey, “Marching for the Vote: Remembering the Woman Suffrage Parade of 1913,” American Women: Topical Essays (Library of Congress, 2018).
5Nicholas Brulliard, “The Forgotten March,” National Parks Magazine (Fall 2018).
6The King Center, “About Dr. Martin Luther King, Jr.”
7A. James Fuller, “The Draft and the Draft Riots of 1863,” Life, Liberty, and the Pursuit of Happiness curriculum, Chapter 8 (Bill of Rights Institute).
8Miguel Hernandez, “The Orange Riots of 1870 and 1871,” New York Almanack, February 5, 2017.
9Michael Parrish, “Rodney King and the Los Angeles Race Riots,” Life, Liberty, and the Pursuit of Happiness curriculum, Chapter 16 (Bill of Rights Institute).
10Amnesty International, “Protect the Protest.”
11Police Executive Research Forum (PERF), The Police Response to Mass Demonstrations: Promising Practices and Lessons Learned (Washington, DC: Office of Community-Oriented Policing Services, 2018).
12Thornhill v. Alabama, 310 U.S. 88 (1940) (retrieved from the National Constitution Center, Supreme Court Case Library).
13Cantwell v. Connecticut, 310 U.S. 296, 308 (1940).
14Richard Parker, “Overbreadth,” Free Speech Center, updated July 10, 2024.
15Frank Askin, “Chilling Effect,” Free Speech Center, updated July 2, 2024.
16Tim Miller, “Part I: Graham v. Conner,” Use of Force (podcast), Federal Law Enforcement Training Centers (FLETC).
17Tim Miller, ”Part II: The ‘No 20/20 Hindsight’ Rule,” Use of Force (podcast), FLETC.
18Kim Barker, Mike Baker, and Ali Watkins, “In City After City, Police Mishandled Black Lives Matter Protests,” New York Times, updated June 28, 2021; Betsy Woodruff Swan and Daniel Lippman, “New Capitol Police Document Shows How Unprepared They Were for Jan. 6 Riots,” Politico, October 29, 2021.
19Isabel Ortiz et al., “An Analysis of World Protests 2006–2020,” in World Protests: A Study of Key Protest Issues in the 21st Century (Cham: Palgrave MacMillan, 2022).
20Pankaj Mishra, “The Globalization of Rage: Why Today’s Extremism Looks Familiar,” Foreign Affairs 95, no. 6 (November/December 2016): 46–54.
21Catrina Doxsee et al., Pushed to Extremes: Domestic Terrorism amid Polarization and Protest, CSIS Briefs (Center for Strategic & International Studies, 2022).
22PERF, The Police Response to Mass Demonstrations.
23Joel Finklestein et al., Network-Enabled Anarchy: How Militant Anarcho-Socialist Networks Use Social Media to Instigate Widespread Violence Against Political Opponents and Law Enforcement, Contagion and Ideology Report (Rutgers, Miller Center for Community Protection and Resilience, 2020).
24Jennifer A. Kingson, “Exclusive: $1 Billion-Plus Riot Damage Is Most Expensive in Insurance History,” Axios, September 26, 2020.
25James Regan and Bloomberg, “French Riots Have Cost $1.1 Billion in Damage to Businesses and Travelers Are Even Canceling Their Vacation Plans,” Fortune, July 4, 2023.
26Fabiola Cineas, “Why Some Counterprotests to Black Lives Matter Are Turning Violent,” Vox, September 14, 2020.
27U.S. Department of Justice, “Ohio Man Sentenced to Life in Prison for Federal Hate Crimes Related to August 2017 Car Attack at Rally in Charlottesville, Virginia,” press release, June 28, 2019.
28Maxine Bernstein, “Michael Reinoehl Appeared To Target Right-Wing Demonstrator Before Fatal Shooting in Portland, Police Say,” The Oregonian, updated September 5, 2020.
29Maggie Koerth and Jamiles Lartey, “Why So Many Police Are Handling the Protests Wrong,” The Marshall Project, June 1, 2020.
30CA Penal Code § 13652 (2021).
31California Commission on Peace Officer Standards and Training (CA POST), POST Guidelines—Crowd Management, Intervention and Control (CA POST, revised 2022).
32PERF, The Police Response to Mass Demonstrations.
33PERF, The Police Response to Mass Demonstrations; CA Post, POST Guidelines—Crowd Management, Intervention and Control.
34PERF, The Police Response to Mass Demonstrations; CA Post, POST Guidelines—Crowd Management, Intervention and Control.
35Doxsee et al., Pushed to Extremes; Finklestein et al., Network-Enabled Anarchy.
Please cite as
Renn Cannon, “The Right to Assemble, When Protests Turn Violent,” Police Chief Online, September 11, 2024.
