Tuesday, November 22, 2011

Police Use Of Force On 'Peaceful Protestors'

Get a cup of coffee, it's a long one. Because like so many other things, it's not a simple issue.

Let me start by saying  I'm not interested in arguing lofty ideals, listening to people squeal in outrage that the world isn't fair, hearing about justifications for civil disobedience and, of course, being told about evil conspiracies meant to oppress us. Us being we who have the highest standard of living in all of human history. The 'why' of the "occupy" protests is not my concern -- and that includes the rationalizations of why breaking the law is 'all right in a noble cause.'

The purpose of this article is to acquaint you with some of the finer points of police use of force and the limits of 'protest.' (That is to say, where it bleeds over into other issues.)

For the record, I'm not against free speech or the right to assemble. And I especially am not against petitioning the government for redress of grievances. While we're at it, I'm not looking at the world through rose-colored, capitalist or conservative glasses.

I will be the first to admit there are beau coup big problems with how things are going in business, the economy, government and society. Things have become systemic in our ways of 'doing business' that are causing these problems. (As an aside, while it is easy to blame 'evil' and greedy corporations, I see money grabbing all over the place -- including under the guise of noble and humanitarian causes.) I will acknowledge all these serious problems -- with a stipulation.

That stipulation is these issues are way more complex and involved than can be solved by pundits, media sound bites, Internet intelligence, blogs and, most importantly, protests.

What I am here to talk about is:
1) The standards of police use of force against people who are refusing lawful orders
2) Why said use of force is both legal and within policy
3) How the 'outrage' certain people express about use of force is out of sync with the way a majority of folks feel.

The first fact you need to know is the "Occupy (Wherever)" protests have done an interesting thing. They have tried to sell us a 'new' definition of protest. It is a definition that has crossed a line and has resulted in police using of force against the protestors. (The irony is this 'version' has been tried before and it was responded to with force back then too.)

The blogsphere is all aflutter over these incidents of brutality, oppression, suppression of free speech and interference with people's 'right' to protest.

But, that is not why the police are using force. It's what people are doing under their 'expanded' definition of protesting that is getting them pepper sprayed, tasered and having the cops kneel on their heads as they are handcuffed.

The second fact directly relates to use of force. There is a big difference between pain and injury. 

This isn't sophism, it is a medical fact. You can have pain without injury, but injury is usually painful. Pain is a sensation. Injury is things getting broken, smashed, cut, crushed or ruptured.

This difference is something most people do not know, much less understand. More than being inexperienced with physical violence, many assume that pain is injury. They hear someone screaming and crying "you're hurting me!" at the police, and they don't recognize there has been no permanent injury done by the officers to the screamer. In fact, that brouhaha is a pretty good indicator that there is no serious injury.

When people are seriously injured, they tend to be quiet. Instead of screaming, they're more invested in rallying their resources to protect the injuries, breathing and basically staying alive. Then there's the whole going into shock thing. The noise to injury ratio isn't always the case, but it's a good rule of thumb -- especially when it comes to arrest and control tactics.

Pain vs. injury is an important component in understanding 'use of force' standards. Actions likely to cause physical injury (broken bones, concussions, internal hemorrhaging, etc.) are considered a higher level of force. Therefore, the use of these levels is more restricted and require the presence of greater danger to the officer (or others). If there is no immediate danger, these tactics are not allowed to be used.

Whereas, inflicting non-damaging pain is deemed a lower level of force.

Third, many  police departments practice 'ask, tell, order' when it comes to verbal tactics. Even though it is 'talking,' these still are integral steps in established 'use of force' policies practiced by law enforcement across the country.

As it was explained to me, ask, tell, order verbalization are a nice bit of  public relations, they keep the peace, articulate what the officer did before taking it to the next level, explain why it went there and set up legally defensible patterns of behavior. The ducks are in a row on this one and you better recognize that.

Let's take ask, tell, order and apply it to someone stopped for suspected drunk driving.
"Could you please step out of the car, sir?" (ask)
"Sir, step out of the car." (tell)
"Step out of the car, NOW!" (order)

The next step is known as 'make.' As in, you've been asked politely, you've been told, you've been ordered, now an officer is going to make you do it.

But for now, let's focus on the talking. Asking is a nice bit of requesting compliance. It's all polite and reasonable to get you to do what the officer wants. It doesn't get your little duck feelings hurt because he's politely asking you to cooperate with him in the execution of his duties. Often this sugar-and-spice approach works very well -- especially when it comes to minor and less dangerous situations.

Having said that: If an officer -- in the execution of his duties -- tells you to do something, it is not a request.

It is what is known as a 'lawful order.' Refusal to follow a lawful order from a law enforcement officer (LEO) in the execution of his or her duties is not a right. Failure to comply is breaking the law and legally permits the officer to use a higher level of force in the execution of his duties. 

Many people, who believe they have the 'right' to argue with a cop, find out about this escalation of force the hard way.  I will also tell you if a cop directly tells you "I'm ordering you to..." the I's have been dotted and the T's crossed for what is coming. The word 'order' is one of those keyword you need to be listening for in what an officer is saying.. This includes an announcement over a bullhorn -- especially when there's a bunch of cops in riot gear standing there. Refusal? Well you can do that, but it won't be fun.

I'd like to explain a related point. In one sense, it doesn't matter how you refuse: If you argue. If you just don't do it. If you try to run. If you stand there and scream obscenities at the cop. If you try to punch the cop. If you sit down, cross your arms and hold your breath. If you throw yourself on the ground and kick and scream in a tantrum.

These all constitutes refusing a lawful order from an officer in the execution of her duties. When you do this, your legal footing has just become quicksand. No matter how morally or emotionally justified you feel you are in doing so. 

Fourth, such a refusal kicks it up to the next level. The officer can now use physical force to 'make you.' 

This is where how you refuse a lawful order becomes real important. We'll talk more about that in the next point. But, for right now, know that use of force practices are overwhelmingly about 'compliance.' That is getting someone to either stop doing something or to do something (back to that 'order' thing again). It's also about getting someone into a position to handcuff him or her. 

The first level of force is known in some departments as 'soft hands.' While it doesn't always, it can include, on the part of the officer, joint locks, take downs, arrest, control and cuffing techniques. I can be non-painful or it can be painful. It depends on the level of resistance. But let's be real here, making someone do something they don't want to do often involves some discomfort to the person.

And that brings us to the subject of pain. Pepper spray and tasers, although extremely uncomfortable, are considered to be part of this lower level of force because they aren't likely to cause physical injury. Physical injury is caused by striking or shooting someone. Yes, two hours later your eyes will be red and inflamed after you have been hit with pepper spray, but odds are you won't be in lying in a coma in a hospital. If you've ever caught a fish hook in your finger, you have suffered the physical 'injury' commonly caused by a taser.

Pain, on the other hand, there's a boatload. Being on the receiving end of these items hurts like hell, and they are really good at convincing people to change their mind about not complying. 

That brings up something else you should know. Use of these items has become more and more popular with law enforcement. That's because going 'hands on' with people always increases the chances of the situation escalating and heightens the chances of injury. This, to both the person and the officer. If people think they can disobey lawful orders, it's a small step from there to physically resisting being touched by the officer.

Physically fight the guy and risk injury or taser him? Guess what? The taser is faster, easier and safer for everybody. After you've been zapped, odds are you're going to let the cop cuff you with no more fuss or bother. Know you are going to encounter this attitude if you choose to resist or disobey a lawful order.

Fifth, there are several versions of resistance to lawful orders.

Let's start with passive resistance. While that includes a drunk sitting down and holding his breath, it also can be a coordinated and intentional strategy. For example, protestors sitting down, locking arms or chaining themselves to something. When dealing with passive resistance, officers are not generally allowed to use levels of force that can cause injury. For instance, they can't beat passive resisters over the heads with clubs.

What is allowed to use is pain to force compliance. That's where pepper spray and tasers can come into play. It is a noninjurious use of force. But, oh boy, do you want to stop doing what you're doing when you're zapped. 

Got a bunch of passive resisters to a lawful order? Hosing them in the face with pepper spray is both legally and departmentally approved use of force. By the time it gets to that point, the whole ask, tell, order policy has run it's course, and there is no doubt that it is willful disobedience to lawful orders.

Passive resistance is one thing. Trying to fight a cop, run away or stop him from cuffing you is what is known as 'active resistance.' While any active resistance is frowned upon, if your active resistance is aggressive, it presents a higher risk to the officer. And attacking the officer is a good way to get injured.

While passive resistance might justify 'soft hands,' active resistance justifies the officer using 'hard hands' (higher level of force). These are actions that can result in physical injury to the actively resisting person. Now we're talking about striking, clubbing and other things that can bust your head.

If people are getting injured by the police, look for active resistance -- if not outright physical attacks on the officer (or someone else). That is the only time police are permitted by both policy and law to use such tactics. Odds are good, those methods will not be used on a 'peaceful' protestor or even a passive resister.

There is another level of force after this and that's lethal. This is a level that an officer can only legally use when his or her life (or someone else's) is in danger. Again, it is based on what the other person is doing to create an immediate threat. This isn't intended to injure or gain compliance, it is designed to stop danger.  And it just so happens to be fatal a lot of the time. Thankfully, these protests haven't gotten to this point yet.

Sixth, protestors are being trained how to exert the highest level of passive resistance without bumping it up to the point where the police would be legally justified to use a higher level of force.

This is why it's important to know the difference between a 'peaceful protest' and passive resistance to a lawful order. One is a legitimate -- and protected -- right. The other is a deliberate act to provoke use of force by the police.

Why? It's public relations (PR). Protestors are quick to exploit any incidents involving the police by claiming they are 'peaceful protestors' being brutalized and oppressed by law enforcement while exercising their rights. And, as the outrage in the blogsphere and social media sites demonstrate, people don't know the difference between peaceful protestors and passive resistance in defiance of lawful orders.

This is where the squeals of 'police brutality against peaceful demonstrators' start. It also is exactly what the protestors want. It engenders sympathy, pity and horror in the public, which they capitalize on to promote their agenda. Basically, knowing that they won't be physically injured (they'll just suffer some discomfort) they actively engage in a behavior they know will result in police use of force against them. Hence, they can claim to be victims.

There is something you need to know about this expanded definition of 'protesting.' The strategy of organized passive resistance is to create as big a bottle neck as possible. This is a deliberate strategy to jam, obstruct and impede others, and cost people time and money. Ideally, it brings the entire environment to a stand still by shutting it down (this is important to the seventh point).

This is a form of passive aggressiveness that not unlike mold on the floor. It creeps farther and farther into other people's space, until there is no option but to step on it or be cornered. When you step on it, the screams of brutality and victimization begin. And these, in turn, are used as 'proof' of the evil and oppressive system.

Passive aggressiveness is a big part of this kind of protest. It is a deliberate interference with the environment that is being justified as 'free speech' and lawful assembly. Not just peaceful assembly, but lawful assembly. While there's a lot of overlap, those are two separate issues.

And that brings us to the seventh point. The issues causing the police to use force do not involve protests. They are about other things.

One of the biggest is camping. More than that, it is camping on public, private and semi-private land. In this expanded version, we are told 'camping, trespassing and creating public safety, health and nuisance issues are legitimate forms of protest.' The protestors are pretending their 'right' to protest extends to squatting on both public and private land.

I cannot stress this point enough: It's not the protest that is getting them pepper sprayed and arrested, it's the camping and refusing lawful orders to remove these illegal camps and tents.

That last point is bigger and deeper than you might think.

The first amendment of our constitution grants us the rights to peacefully assemble and speak freely. At the same time, these 'rights' are balanced with the rights and needs of others -- especially when it comes to safety.

That guarantee of 'rights,' however, has a much more specific and limited meaning than people think it does.

Let's start with the biggest point of ignorance about the 'rights' we assume are ours. I have a favorite 'demotivational poster' that reads: "Bill of Rights. Didn't read. Too long -- but will use half-assed understanding to demand 'freedom' for stupid behavior."

For those of you who fall into the 'Too Long, Didn't Read' clique, we'll keep it short and limit it to only one of the first 10 amendments to the constitution. Here is the First Amendment in ye olde Bill of Rights:
"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."

Notice that first word. It's important. In fact, it's really important. That's because it very specifically identifies that 'congress' cannot pass laws restricting free speech, religion, the press or your right to peacefully assemble. This has since been expanded in conventional opinion to include 'government.'

That amendment clearly states the government can't stop the listed behaviors. In practice, that means the government can't stop the Nazis from marching in Skokie. Nor can it pass laws to keep the Westboro Baptist Church from spreading its religious hate and bigotry. In the same vein, it isn't allowed to say the Occupy (Wherever) or the Tea Party can't hold a rally.

What the government can do, however, is establish parameters for public safety, health and to minimize nuisance during these assemblies. That means there are standards of behavior you can engage in and those that you can't.

This is important for three reasons:
1) it ensures safety
2) it limits damage to private and public property
3)  in a democracy, not everyone is going to agree with (or even be interested in) what those who are assembling have to say

Setting these boundaries is not suppressing the rights of free speech or freedom to assemble. In fact, here's something a lot of people don't know.

Legal protests, rallies, demonstrations and marches are, in fact, helped and supported by the police. More than that, there are accepted public venues that can be used. The city will give you a place to assemble.You file for a permit, and the police coordinate the traffic and parking. And, by the way, the requirement to file a permit to hold a demonstration is not a suppression of free speech. It's a step in getting police support because logistics for an assembly take time and planning. Extra officers, traffic control, routes for marches, public safety and services, all of these need to be organized so you can have your rally. These also are things the city do in order for people to exercise their 'right' to protest. Things that allow everyone to get their needs met, including the rights of people -- who don't agree with the protestors -- not to be bothered by them.

Wow, that's pretty neat. You get your rally, protest, demonstration or what have you, while everyone else gets to go about their business with minimal interruption, safety or health concerns. I'm okay with this idea.

A point of interest, though. By using this system, free speech is not free. By that I mean, the city ends up paying for overtime, police presence, rerouting traffic and clean up. This, in turn, means the taxpayers are paying to support your right to peacefully assemble. Still, it's a pretty good deal.

Having said all this, the 'rights' to assembly and free speech do not extend to a whole lot of other things -- including corporations or private property. For example, you do not have the right to 'protest' on private or semi-private property. You can be forcibly removed for trespassing. You do not have the right to block traffic or access. You cannot interfere with or harass those entering or leaving a governmental or business establishment. This is why picketers or those on strike must stay on the sidewalk in front of the business or organization with which they disagree. Not in the street, not on private property and they must keep moving.

Another example of this is the private park where the original Occupy Wall Street started and the UC-Davis campus. These are private properties that allow public access. That is not the same as public property (e.g., a public park). If the owners or trustees of these properties 'allow' the protest, fine. If they say no, that is their 'right.' This includes the right to withdraw permission if a crowd gets out of hand.

An important point about public or government property is where protests are permissible. This comes back to permits. Recently, several  arrests of 'Occupy Denver' folks occurred when protestors decided to take their show to other locations. Then they decided to refuse the lawful order to leave those new areas. The police didn't tell them that they couldn't go back to the park (where they had permits to assemble). The police said, "Okay over there, but you can't protest here without a permit."  Some of the protestors said, "Oh yes we can!" and arrests resulted.

This seems like a small point, but it's a big public safety  and nuisance issue -- especially when protestors start coming up with 'good ideas' as they roam the streets. (Remember the WTO riots in Seattle?) There's a reason permits are location specific.

This brings us to free speech

Let's start with the fact case law has established the 'right to free speech' does not extend to 'falsely yelling fire in a crowded theater' (Justice Oliver Wendell Holmes, Schenck vs. United States, 1919).  That point has been pretty well argued and established in the courts.

Beyond that, free speech is a pretty contentious topic, especially when hate speech, fighting words, slander, libel and 'encouraging others to engage in criminal and destructive acts' get thrown into the mix. Just because someone claims what they are saying is 'free speech,' doesn't mean it is. (And yes, you can apply that idea to what constitutes 'peaceful protest,' as well.)

Where people really don't understand that their 'right' to free speech does not extend is to corporations, private businesses or John Q. Public. A newspaper (a company) is not violating your rights if they choose not to publish your ranting manifesto. That is not censorship, that is either an editorial or business decision by the company.

The First Amendment says the 'government' can't stop you from talking, blogging or starting your own newspaper. That doesn't mean, if people don't want to listen to you, your 'rights' are being violated. The government didn't do it, other factors are involved -- including the likelihood that people think you're wrong.

There are actions that have been through the legal system and have been deemed expressions of free speech. Just as there are acts that have been shot down as not being free speech.

For example, in 2007 Elizabeth Book won her appeal regarding protesting topless in Daytona Beach. Her gripe was women were being ticketed for public nudity (and other things) at the annual biker rally for 'showing their tits' (a tradition in the biker community). In 2004, her form of protest was to protest topless. It was a planned event, the media was alerted and, sure enough, she was arrested for public nudity. The court upheld her contention that it was an expression of free speech. Disorderly conduct charges, however, relating to a different incident stood up.

In contrast, to Ms. Book's 'success,' nude sunbathing or just flashing one's boobies (even at Mardi Gras and biker rallies) have consistently been rejected as acts of freedom of expression (free speech). People doing so are regularly cited for public nudity, disorderly conduct and as public nuisances. Whereas, strip clubs -- private property, limited admission and not in public -- have been found to be protected as artistic expression.

Confused yet? Welcome to how complicated the law and 'rights' can get. But it is very important in establishing the standards of free speech.

This is, in part, why the redefinition of camping as part of a protest has caused problems. At this time, camping has not been legally recognized as a valid form of freedom of expression, free speech, or protest. (Oh, BTW, remember I said this redefinition of protest to include camping has been tried before? The 'Bonus Army' tried occupying Washington DC in 1932. It wasn't cops who broke it up, it was the US Army. Turns out camping wasn't accepted as part of a protest back then either.) This failure to be legally recognized means it is not an accepted form of protest that must be tolerated.

That puts us in another realm. In particular, existing health and safety laws.

During this latest round of protests, police in various areas let slide placing sleeping bags and setting up food tables. Actually, those were more political decisions by the powers-that-be. It's one of those technically illegal actions, but enforcement would open a can of worms because of the claim that it is 'part of the protest.' The powers-that-be drew the line at pitching tents, however. At first glance, this might seem arbitrary. It's not.

You cannot legally 'camp' on public property (that's why cops run bums out of the park). While we're at it, you cannot 'block' a public thoroughfare or road -- without permits or for an extended period of time. Again, this is why protestors must keep moving on sidewalks or rally only in designated areas. This allows traffic to flow around them. A person in a sleeping bag can get up and move. Tents don't move easily. The tents became obstructions. Whether they were intentionally set up to be so or that was just the effect, doesn't matter. They were in the way.

There are a lot of people who dismiss the 'inconvenience' the protestors are causing to other in the pursuit of  their rights (an attitude that should make you go 'hmmmmm' about someone else volunteering your time and inconvenience). The same folks also to dismiss health and safety issues as either inconsequential or alarmist.

My position is a little different due to personal experiences. Ever been in a crowd when someone starts shooting a gun? I have. Not fun. Ever been in a crowd when a fire breaks out? Again, I have. And again, way not fun.Ever been caught in a riot? BTDT. Add it to the list of not fun things to do. Ever work events or crowd control? I have. Things can go real bad, real quick in a crowd. And when they do obstructions make them all that much worse. Whenever you get crowds, health and safety IS a big deal.

Again the 'dismissers' will claim 'those things won't happen. But speaking as someone who worked crowds professionally, I can assure you they do. Way too often. The only reason 'those things' don't happen more often is because there are people working their asses off to keep it from happening. 

The final point about 'free speech' involves your fellow citizens. Now we're getting into 'my right to swing my arm ends where my neighbor's nose begins.' (Zechariah Chafee, "Freedom of Speech in Wartime", 32 Harvard Law Review 932, 957 (1919).  This includes other people being 'inconvenienced' and endangered by self-appointed 'protestors.' 

This isn't a case of a  'protest means whatever I think it means' issue. Nor is it conveniently dismissed by the claim of 'what I'm doing isn't hurting anyone.' We've moved into the realm of cause and effect, safety, health, unintentional consequences and property damage.

For example, a few years ago, protestors in Washington state threw bricks and garbage at passing cars and pushed roll-away trash bins out into traffic. Was this free speech? Was this a legitimate form of protest? Or did it create dangerous and problematic conditions where injury and property damage were likely? Realize that these conditions weren't just created where the dumpsters were being pushed into intersections, but extended miles down the streets and in multiple directions. These actions affected people who never laid eyes on the protestors. Oh yeah, and throwing objects at moving cars? Great way to cause wrecks -- also illegal as hell for endangering other people.

That is more extreme than what this latest batch of protestors are doing, but it illustrates a point. The behaviors of these Occupy folks have become public health and safety issues. People aren't getting pepper sprayed for engaging in peaceful assembly.. People are getting pepper sprayed and arrested for refusing lawful orders to take down their tents and impeding the law enforcement in the execution of their duties as public safety officers (taking the tents down). Some of this resistance is passive, some of it is active. And remember, actions that cause danger to the police or others can be legally and justifiably met with a much higher level of force to put a stop to them.

Keep that in mind when you hear about incidents of 'peaceful' protestors getting injured. You have to ask, what was that person doing that officers -- on the scene -- deemed a level of force likely to cause injury was warranted. (And that's another well established legal precedent a lot of people don't know about. It is the professional assessment of the officer on location that determines if a behavior poses a danger. It is not what the commentator on Youtube or Facebook thinks. To make you feel all warm and fuzzy, this assessment is based on established external standards of known dangers. [It's called 'jeopardy' -- acting in a manner that is known to be dangerous.] So the officer isn't making it up on the spot to justify his or her actions.)

I'm sure by now some apologists are trying to frame an argument about how camping and peaceful protest do not justify police use of force. My point is that is not the issue.

The issues are violating health and safety laws, disobeying lawful orders, passive resistance and the level of force legally allowed against passive resistance. Just as importantly, the level of force allowed when that resistance becomes both active and a danger.

Yet this behavior has it's defenders. A common 'monkey brain' wiggle is how 'breaking the law is okay if it is for a noble and idealistic cause.'

If you try to point out these nuts-and-bolts problems regarding health, safety, disorderly conduct and public nuisance, apologists will immediately jackrabbit off to wax poetic about social injustice and tyranny. If you let them get a head of steam going, they will tell you about their outrage against social inequality. In the meantime, ignoring the facts that a hundred people camped in a park and peeing on trees is neither free speech nor particularly sanitary.

Another common subset of this red herring defense is 'the wrong we're protesting is greater than the wrong we're doing, so that makes it right.'

I actually saw someone try to justify the millions of dollars Occupy Wall Street has cost the New York City by pointing out the supposed trillions that 'big business' had 'stolen.'  What? Really? That's what you call 'logic?' Oh, BTW, the $6 million figure does not include the cost of time of people who work in the area and loss of business local shops and restaurants have suffered because people are avoiding the area. This is the 'inconvenience' that 'dismissers' wave away as inconsequential. It's okay. Those people being inconvenienced are either part of, or supporters of, 'the great evil' the Occupy folks are protesting. So they deserve what they get.

Another red herring is to claim pepper spray and tasers are 'torture.' A friend pointed out it's not. That's because  'You can't make torture stop.' You can, however, stop the pain police are inflicting on you by the simple act of complying to the order you are disobeying and resisting. I thought about this and added that torture is 'involuntary.' You can't stop it from happening to you. People come into your cell and drag you to the torture chamber. On the other hand, you can prevent being pepper sprayed by simply complying with a lawful order.  That's why the 'torture' argument falls down, the pain these folks are undergoing is entirely voluntary. They are in control if it happens and when it stops. (Boy could I run with some BDSM jokes).

Two final points in closing. I've heard people strenuously object to force being used on protestors as though they were 'criminals.' I find this position to be not only ironic, but downright funny in its hypocrisy. To understand why, I first have to tell you a quote I recently heard: In the eyes of the law, all are equal. However, those who apply the law may not do so equally.

That statement acknowledges that things can be handled in a less than perfect way by the authorities. In fact, you can even go so far as to say there can be bias in many cases. Point ceded without argument.

That bias statement, however, is a two-way street. As in, many people are saying, "These protestors should be treated differently for breaking the law because their motives are pure."

Stop and think about that for a second. It is an incredibly elitist, self-serving and arrogant attitude. One you'll see regarding this topic because it's sitting right there in plain sight.

Police are not allowed to exercise judgment and selective enforcement between who is a 'criminal' and who is a 'protestor.' They must react according to the circumstances. This includes the fact the law applies across the board (in the eyes of the law, all are equal). As does enforcement and the responses to refusal of lawful orders and resistance.

Camping and trespassing are prohibited, and it doesn't matter who or WHY someone is breaking these laws. The same goes for blocking thoroughfares and being a public nuisance. The police are duty bound to resolve these issues. If, in executing this duty, they encounter passive and active resistance, these conditions will elicit pre-established and departmentally approved responses. This is how the police treat everyone who actively and willfully disobey lawful orders.

This is where the hypocrisy comes in. When people are squealing about protestors being treated like criminals (being pepper sprayed for passive resistance and refusing a lawful order), what they are objecting to is everyone being treated equally. 

For folks who are protesting the inequality and injustice of our society, they certainly are claiming some special treatment for themselves, dontcha think?

My last point is to ask how much of this is a PR battle?  One that the view from the streets says the Occupy folks may be strong in the blogsphere and certain Facebook circles, but they're losing the bigger battle.

A simple truth is that because these are 'organized protests' (like I said most of them even have permits) the powers-that-be have, by in large, held off doing anything about the protestors and the problems they are causing. Basically, although there have been lots of minor issues, people in authority have told the police not to act. Ordering the police to act is a serious turdburger that government has wisely hesitated to bite into.

When it comes to knowing how to 'play the game,'  however, the powers-that-be aren't stupid. In fact, by letting the protests go on, they've allowed a counter position to grow. A position that really isn't that sympathetic to what the occupiers are doing, how long they've dragged it on and how much money they've cost.

Again, while support is strong in the blogsphere and social media for Occupy (Wherever), that isn't the case with the general public. People either don't care or are getting sick and tired of it. People in coffee shops and progressive areas might be for the occupation and what it stands for, but in truck stops, McDonald's and Black Angus restaurants across the country, there really isn't that much support. 

(Do me a favor 'dismissers,' don't you dare tell me the opinions of these, your fellow citizens, don't count.)

What little support the protestors might have had has waned as the protests drag on and costs mount for the taxpaying public. (This, in addition to the number of incidents where members of the so-called 'peaceful protest' decided to stop passively resisting and engage in active resistance.) While sections of the Internet get all aflutter with news releases and videos of the police using force, there's a lot more folks out there who are shrugging and saying, "About time."

I may be a knuckle-dragging Neanderthal, but even I can see there's a lot more to be considered here than a bunch of protestors claiming they shouldn't get pepper sprayed when they cause health and safety issues, refuse lawful orders and, in some cases, create active threats. Now that you know these things about use of force, you have a much stronger way to explain to the next person, who is all aghast and horrified exactly why the police used force on those sweet, innocent, peaceful protestors.



  1. Excellently structured argument. Any thoughts on Dale Farm in the UK?

  2. Thanks for finally putting some sanity into this I'm gonna share this knowledge and try to get it out there...credit given of course

  3. "1) The standards of police use of force against people who are refusing lawful orders
    2) Why said use of force is both legal and within policy
    3) How the 'outrage' certain people express about use of force is out of sync with the way a majority of folks feel."

    All three of these issues are irrelevant. I don't care what police "standards" are, nor do I care about the "legality" of it or the way the majority feels. The only legitimate way to approach an ethical/moral/political decision is from the paradigm of "What action will result in the least amount of suffering to the greatest amount of people", alternatively "What action will result in the greatest amount of happiness for the greatest amount of people." In criticizing an action, therefore, the focus should be on its effects.

    Who benefits from police brutality? A few plutocrats. Who is harmed by it? The protesters themselves directly, a broader selection of people whose willingness to confront power is weakened, and in turn, the populace as a whole resulting from their inability to control their own destiny.

    Therefore, the balance of reason suggests that police brutality against protesters is wrong.

    1. Brutality: savage physical violence; great cruelty.

      What the OP is describing is not brutality, it is lawful response to unlawful action.

      You seem to be ignoring the point. The police don't care if it's Nazi's, criminals, or civil rights protesters blocking the driveway to McDonalds, they are paid to unblock it, and it is reasonable to give them the tools to do so without too greatly rising their own lives.

      We have a choice to live in a society where we can generally expect order, or one which is chaos. The heart of our democracy is that we settle our differences in an orderly fashion, albeit an arduous one. Nonetheless, you cannot pick and choose when to apply the law of the land.

  4. Marc, thanks for the great insights on police reaction to the Occupy movement. You gave me a lot to think about.

    I think your post would be even more interesting if it included some discussion of civil rights era sit-ins, or of Rosa Parks refusing a lawful order to move to the back of the bus. Civil disobedience always, by definition, involves breaking laws and inconveniencing third parties. Is it therefore also always wrong?

    Certainly, protestors hope to provoke camera-ready police overreactions. This is part of the nature of civil disobedience, and I don't think the tactic is any more illegitimate in the Occupy protests than it was in the civil rights era or more currently in Egypt's Tahrir Square.

    Also, although I'd rather be hurt than injured, I think the distinction has limits that bear mentioning. Waterboarding doesn't injure. Neither does sleep deprivation, forced standing, or other torture techniques designed not to leave marks. Yet no reasonable person would argue the techniques in question are therefore not torture.

    Similarly, the notion that something isn't torture if compliance can make it stop is unworkable. If someone promises to stop the electric shock to your genitals if you give up the names of your compatriots, and then fulfills the promise, you have still been tortured.

    I'm sure my views are colored by my abhorrence of oligarchical rule in America and my sympathy for the Occupy movement. But I've tried to set that aside and respond to the logic of your points without reference to my own politics.

    Thanks again for a very thought-provoking piece.

  5. Thanks so much Marc for your insight. While I feel that the protesters have a lot of important things to say, I can't help but find myself laughing as they lament the technique of the NYPD known as kettling, where basically all the protesters are wrapped up in a big net and held while the police sort them out and arrest them. I wonder how many protestors in the civil rights movement would have traded dogs and fire hoses for kettling.

    While I find interesting points and arguments on all sides of this, my opinion is that these people are taking a calculated risk. Whether their calculations are right or not is another matter, but they are knowingly breaking the law to advance a cause that they believe in. The protesters in Egypt suffered no illusions that they would be spared an iota of the full force of the Mubarak regime, and these protesters should not either. There are things in this world worth fighting for, worth going to jail for, and worth dying for if it comes to it. Once you decide what those things are, you can't complain because others do what they said they would do. If you stand up to power, expect it to try and squash you. If you deem that the risk is worth it, go for it, but don't whine about it. Freedom is about rights, but its also about responsibility and owning the decisions you make.

  6. 1) Although I always enjoy your writing, in this case I think you weaken your arguments by occasionally mixing in your dislike of the protesters with your very rational, reasoned explanation of use of force.
    2) You don't discuss if it is legal to refuse a cop's orders when he is behaving illegally. I come from a city where the police are known to be corrupt and bully people and, although it's largely a moot point -as common sense says you don't have much choice when the men with guns and radios and the judges on their side tell you what to do-- I have wondered what my rights are if they arrest me for no reason as they occasionally do to people.
    (Don't believe me? Just go to google and type in "Schenectady Police Corruption" and see what you find.)
    3) One of my cousins had a very funny story about being arrested for civil disobedience during a Gay rights sit-in. She said that although she paid her fine and gave a short explanatory speech as to why her cause was just, some of her fellow protestors tried to plead not guilty on the grounds that the police had waited for the news cameras to go home before arresting them. She and the judge both thought it was ridiculous to commit civil disobedience then plead not guilty.
    Strangely enough, about a year later, she could see ZERO connection between her actions and those of the "fanatics who break laws" doing a sit-in at the local Planned Parenthood abortion clinic.
    4) You ignore the fact that pepper spray is often lethal to asthmatics. It is not a completely harmless "pain only" device nor are any of these things. These things are "less lethal" --not "non-lethal." I suspect you know more about that than I do though. Perhaps it's a good topic for a follow-up piece.
    5) Should anyone care, I've actually been pepper sprayed while working as a newspaper reporter attending the local jail guards training. I wrote about it for the paper and pasted it on my blog:

    Thanks for the interesting piece. I look forward to many others.

  7. What I like is that no matter how illegal it is to "peacefully protest" or be civilly disobedient that police brutality is decided not by courts of law, but by courts of public opinion. And as many videos go viral daily of police officers abusing their authority your argument, whether factual or not, loses all chance of holding high ground. This movement won't be stopped by pepper spray, a billy club, it will be decided ultimately in the voting booth, on the senate floor, and in the street. People who have had enough won't stay quiet anymore. I dare you to prove me wrong. History has already proven that peaceful protests can move mountains.

  8. Basically, if you decide to break the law, for whatever reason, you have to expect to pay the price (fine, arrest, etc). If you decide to resist paying this price, there will be an immediate, dynamic response. If you feel the cause is worthy enough to pay these prices, then give her gas, baby. Do what you feel you need to do.

    But don't feign shock, please. It's insulting.

    To the anon poster - utilitarianism is not the only prism to look at this scenario through. Maybe in your world it is, but there are other, philosophically valid views.

    Another issue - tents. Ever think of the Fourth Amendment issues attached to a tent? It's very nearly a domicile, if not outright. Lots of stuff attaches to domiciles.

    Finally, Marc, there is a difference between active resistance (running/pulling away) and fighting with cops in use of force. Fighting is not active resistance, it's labeled under "assaultive."


  9. I think that the incident Marc describes explains why having a Just Right enforcement response to any situation is necessary in order to build Respect.

    Marc clearly outlined the legalities involved. Laws change over time, but the concept of Just Right is timeless.

    To those sympathetic to the Occupy Movement, the use of pepper spray as seen on YouTube appears to be an Over Reaction to the protesters. As a result, they become increasing more hostile and have less Respect for the police involved. This reaction is instantaneous; the lessening of Respect is easily seen by the reactions of the surrounding crowd.

    Conversely, had the police begged and pleaded with the protestor’s to move, or acted intimidated by the them, there would also have been a lessening of Respect for their Under Reaction to the situation.

    But for the sake of argument, let’s change the scenario. Assume there is a seriously injured person in an ambulance. The protesters are blocking the ambulance’s route to the hospital. Time is of the essence or the patient will die.

    If the police had used a lower level of force (verbal commands only) that would be seen as an Under Reaction. Using night sticks to clear the route would be seen as an Over Reaction, and now the Pepper Spray method becomes Just Right. People view the police with increased Respect for handling the situation with the appropriate level of force.

    The point is that if an unwanted behavior ultimately stems from a lack of Respect for the rules, then building Respect requires Enforcement responses that are neither too aggressive, nor too passive, but Just Right.

  10. Barry: I'm thinking in pen here.

    Re: Rosa Parks
    The scenarios differ because RP was about race issues and the OWS is about class issues...? One is Constitutionally protected and one is not.

    Re: Torture
    The context is important. Insurgents are not legally required to submit to America's orders/demands, and so the compliance is better classified as a "want", maybe? Whereas, Americans are required to follow the nation's laws as a condition of citizenship; there's an implicit agreement to do as the law states. Therefore, compliance in this case is choosing to end a "breech of contract", rather than agreeing to demands that the demand-er has no authority to make....sort of (Times of War present tricky issues).

    Thanks for read-listening! =)

  11. Surgere,
    While it is true that the events that surrounded Rosa Parks were about race issues and OWS is not, your statement of "one is Constutionally protected and the other is not" is incorrect.

    Rosa Parks was arrested for the bus incident in 1955. At this time, the "separate but equal" ideology was still in effect. Indeed, laws in the Montgomery city ordinances at the time meant that Rosa Parks was "breaking" the law and therefore, police were within their "rights" to arrest her. Her refusal to move and the events that would follow were illegal under the laws at the time. The "separtate but equal" ideologies that were prevalent at the time were not formally done away with until the Civil Rights Act of 1964.

    So the notion that certain protests that are deemed "unlawful" and as such, police can use whatever force is needed becomes subjective; depending on where a person is viewing from.

  12. I think it's funny how even though it has been legally laid out that this was not police brutality people still ignore that fact and say it is anyway. And sir the public can form an opinion on what they think is police brutality but I assure you the courts still have the final decision. I've grown up in Alabama my entire life. If you want to see what real police brutality looks like then look at some film of it in Birmingham in the 60's.

  13. Whether an order is lawful or not, if it violates one's constitutional rights, it should absolutely be disobeyed.

    Yes, in most (but not all) circumstances, if the protest is on private property, the protesters have no right to assemble there. However, when it is public property, they unquestionably do.

    I, for one, applaud these "hippies" and "kids" for standing up to overly-authoritarian modern police. Whether the police are legally in the right or not is irrelevant, suppression of protest through violent, quasi-military force should be abhorred.

  14. You could make this a lot more readable by not assuming your readers are idiots. Are your readers idiots? Why am I reading this?

    I can't believe you spent 30+ paragraphs explaining how cops can issue orders and what freedom of speach and resistance is. You really have no point here that anyone isn't already aware of. You just come off like a no-it-all when you really have no idea.

    Next time, start out with how the protesters are hippies looking for handouts so I know not to waste my time.

  15. neuroelectronic,

    If you're not an idiot than you need to use grammar check a little better.

    It's "know-it-all," and Marc has as much standing to be one as any person I've with whom I've trained. He has seen the elephant and knows whereof he speaks, although he hardly needs me to defend him.

    To the rest of you: if the occupy douchebags want to break the law to make their point known and are willing to risk arrest for a cause then I applaud them. But for goodness sake don't whine about getting arrested when you knowingly break the law for your cause.

    Also, there are several thousand open jobs in the oil fields of North Dakota and Montana as we speak. Go occupy one of those.


  16. You guys might want to check on 9th Appellate Court finding that determined that pepper spraying peaceful protesters was a violation of their 4th Amendment Rights and that locking arms was not active resistance.It also ruled that the officers doing such actions were not entitled to limited immunity and could be sued. Check Headwaters vs Humbolt Sheriffs Dept.

  17. and everyone knows the 9th Appellate Court in San Fransisco is the most liberal damned court in the US.

  18. If you're going to talk about the case, you might want to know somethings about it.

    And just because the 9th Circuit favored it, doesn't mean that decision isn't going to be appealed

  19. Looked at link you suggested which appears to be the 2000 appeal. After that there was a remand from SCOTUS, three jury trial (one mistrial, one hung jury and finally a unanimous verdict for the plaintives). This took place in 2006. After last trial both parties formally agreed to no further litigation of the case, Humbolt picked up the plaintives legal costs (about $1m). So chances of it being appealed again are slight. Now there are of course differences between this case and any current situation that you were discussing. I am not saying whether i agree with the findings of not, i only posted because if you come under 9th Circuit which is basically everything west of Montana, this is the legal precedent that your actions will be weighed against. It is for your readers to decide if the use of OC is worth the risk of the legal ramifications. The UC-Davis incident will ultimately determine what policy of OC sprays will be going forward. ACLU is already apparently launching massive suit.

  20. UC Davis: Followed, surrounded, outnumbered by a yelling mob interfering with the officer's duty, stopping the police from leaving and demanding the release of people already under arrest before they will let the police leave -- so much for a 'peaceful protest.'
    It's fifteen minutes long. If you don't see the intimidation and potential danger, hear the mob mentality of the chants and dismiss all the warnings and opportunity to withdraw before being sprayed then you are willfully ignoring this had crossed the line from a 'peaceful protest ' -- including telling the police they'd let them leave 'peacefully' if they didn't come back.

  21. Could you talk about 'lawful orders' a bit more please? Does it mean that a police officer can make you do anything they want? If not, how do you know and where is the line?