By Eric P. Daigle, Attorney, Daigle Law Group LLC, Southington, Connecticut
he demonstrations of the past year—including the Occupy movement, the flash mobs, and the sports championships—clearly put law enforcement agencies on notice that they have an obligation to prepare their departments for a proper response to these events. The Occupy movement has provided a glimpse of what can be expected in the future. Preparation to address these crowds is best achieved through policy, training, and application of how to manage crowds while protecting First and Fourth Amendment rights.
It is clear that the lessons learned from the Vietnam protests, the race riots, and the political demonstrations of the past have been forgotten. It is time to dust off the policy, find the long batons, and take the officers back out to the parking lot to work on linear and wedge formations. Law enforcement must carefully balance the First and Fourth Amendment rights of citizens with the protection of public and property. Not all crowd control situations, however, involve unlawful behavior. It should be the mission of law enforcement to protect lawful activity while identifying and addressing unlawful behavior.
Multiple aspects must be considered and addressed in policies and training to enable law enforcement to provide an effective response in situations that require crowd management. These aspects include
- knowledge of the legal standards applicable to First Amendment conduct,
- proper use of force, and
- effective information gathering.
As in all high-liability areas, proper policy guidance, effective training, detailed planning, and effective leadership are necessary. Departments that develop an operational plan for their jurisdictions will have the opportunity to examine logistics and assign responsibilities prior to an actual event.
One area departments are encouraged to examine in their policies and operational plans is the process and procedure for declaring an unlawful assembly. The definition of an unlawful assembly usually is covered by state statute, and the manner in which departments must declare an unlawful assembly is clearly identified in governing law. It is essential that law enforcement leaders understand the law as it pertains to unlawful assembly.
The decision to declare a crowd unlawful must be based upon reasonable and articulable facts. Dispersal orders should be clear, loud, and given multiple times, and the crowd must be given clear pathways to leave the area. Departments should record the process of declaring an unlawful assembly and the manner in which the officers order and enforce crowd dispersal.
The development of a comprehensive policy that provides detailed protocol and clear guidance to officers is essential. Departments can start by understanding and incorporating guidelines, such as those recommended by the U.S. Department of Justice.1 Policies must provide clear definitions and should include procedures for
- officer and agency response,
- planning for response (incident commander),
- authority for the deployment of resources,
- conducting crowd control and management,
- response to crowd situations,
- declaring an unlawful assembly, and
- the proper use of approved tactics and weapons.
Polices also should contain a section regarding prohibited weapons for crowd control and should contain a protocol for mass arrest procedures. Policies should contain sections regarding videotaping and photographing events, as well as a mandated reporting requirement that includes supplemental reports.
Issues also arise when mutual aid agreements are factors. But what happens when the standards of one agency differ from the other? Whose policy is the guiding factor? If agency A, for example, precludes a specific use of force that responding agency B does not, can agency A use that method? These are questions that departments must ask themselves when drafting or revising their policies.
Agencies also should examine the challenges associated with mass arrests and the best methods for handling such actions. A flash mob, for example, could quickly lead to a situation where hundreds of people are arrested. How will departments transport them, hold them, process them, and provide them with bathroom facilities and food? Who will handle the collection of police reports to support the arrest and work with the court to have them arraigned? Finally, but perhaps most importantly, what force will be authorized and in what manner will it be used? Again, these are all vital areas that must be addressed in a department’s policy and operational plan.
Officers must be trained on the agency’s policy for their own protection and for the protection of the agency. Officers must have a clear understanding of the law, the individual policy, and the department’s mission objectives. Some officers might not know the basis of a First Amendment violation or how their actions can cause one. Training also must focus on the fact that officer discipline and restraint is an essential component in successfully managing crowds. Furthermore, crowd management training should include a review of department policy and procedures, arrest and control techniques, use-of-force standards, mass arrests, and less-lethal application.
The First Amendment of the U.S. Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Police agencies, realizing the necessity for a closer look at this issue, have created guidelines for departments and officers to utilize when evaluating the effectiveness and adequacy of their crowd control policies. One such agency, the U.S. Department of Justice, divides its guidelines into three areas:
1. The Pre-Event Stage discusses how law enforcement will plan for an event or demonstration where First Amendment protections are involved.
2. The Operational Stage focuses on how law enforcement will respond to the event.
3. The Post-Event Stage addresses how and whether information obtained as a result of the event (both during the Pre-Event Stage and the Operational Stage) will be evaluated, disseminated, retained, or discarded, as per agency policy.2
During a protest, rally, or other large group gathering, the role of law enforcement officers is to ensure the public’s safety, protect lives and property, and also protect the First Amendment rights of all persons involved in the events. On occasion, these goals may come into conflict during an active protest or rally. Officers are charged with the task of maintaining order, peace, and safety of individuals at protests or other public gatherings, while respecting and protecting the individuals’ First Amendment rights. Such a task creates great challenges for the officers and requires a careful balancing act on the part of the officers and their departments.
Departments also should have an operational plan in place for incident documentation, which is an important aid when addressing complaints and preparing civil litigation defense. Incident documentation includes audio, video, photography, reports, dispatch tapes, use-of-force reports, arrest reports, and after-action reports.
The future is clear that protesting and demonstrations will continue and flash mobs will increase. Advances in technology have provided protest and rally participants with invaluable tools to spread information to a greater number of individuals in a short period of time, resulting in larger, more informed crowds. Waiting to develop a plan of action for a proper response until after an agency receives the call that a crowd has gathered will leave officers and the agency exposed to unnecessary danger and challenges. ♦
1U.S. Department of Justice, Law Enforcement Guidelines for First Amendment-Protected Events, October 2011, http://info.publicintelligence.net/DoJ-FirstAmendment.pdf (accessed July 30, 2012).
Please cite as:
Eric P. Daigle, "Crowd Management and Civil Rights Protection," Chief‘s Counsel, The Police Chief 79 (September 2012): 10&150;11.