AN ARGUMENT AGAINST UNBOUNDED ARREST POWER: THE EXPRESSIVE FOURTH AMENDMENT AND PROTESTING WHILE BLACK.

• Author: Loor, Karen J. Pita

TABLE OF CONTENTS INTRODUCTION I. REVIEWING THE EXPRESSIVE FOURTH AMENDMENT II. ARRESTS DURING PROTESTS A. Legal Basis for Arrest Powers During Protests 1. Application of Traditional Crimes to Protests 2. Protest Crimes 3. Arrests During a State of Emergency B. Demographics of New York City Arrestees During the 2020 George Floyd Protests III. APPLYING THE EXPRESSIVE FOURTH AMENDMENT TO Protest-Related Arrests A. Limits of Current Fourth Amendment Challenges to Protest-Related Arrests B. Expressive Fourth Amendment Challenges to Protest Related Arrests CONCLUSION INTRODUCTION

Protesting is supposed to be revered in our democracy, considered "as American as apple pie" in our nation's mythology. But the actual experiences of the 2020 racial justice protesters showed that this supposed reverence for political dissent and protest is more akin to American folklore than reality on the streets. The images from those streets depicted police officers clad in riot gear and armed with shields, batons, and "less than" lethal weapons aggressively arresting protesters, often en masse. In the first week of the George Floyd protests, police arrested roughly 10,000 people, (1) and approximately 78 percent of those arrests were for nonviolent misdemeanor offenses or criminal violations. (2) Moreover, troubling figures regarding the racial breakdown of protest-related arrests, (3) along with anecdotes from activists, suggest that just like with routine policing, (4) the experiences of Black and white (5) people differ during protests--even when they protest side by side--with police potentially targeting Black activists for arrest. Like other activities, including driving while Black, (6) sitting in Starbucks while Black, (7) jogging while black, (8) and bird watching while Black, (9) protesting while Black may also place Black people in harm's way much more than white people. However, while the sight of Black people engaged in these typical innocuous activities should not spur civilian or police scrutiny or much less aggression, protesting is not just innocuous but constitutionally protected expressive conduct. (10)

This Article exposes how police officers' easy access to a wide arsenal of criminal charges serves to trample on expressive freedoms and explains how a new and clearer understanding of the Fourth Amendment's application to expressive conduct should curb the police's seemingly unbounded power to arrest protesters. I revisit the Expressive Fourth Amendment doctrine, which I previously advanced in another article, and where I posited that there is an expressive component to Fourth Amendment protection. (11) Courts have largely ignored or missed this expressive realm of Fourth Amendment protection in most contexts and, therefore, have treated expressive conduct by protesters the same as nonexpressive conduct by criminal suspects. Like other scholars, (12) I maintain that current jurisprudence surrounding arrests of individuals suspected of nonexpressive illegal conduct provides insufficient protection to be faithful to the Fourth Amendment. However, I contribute here, like in my prior articles, a distinct critique by contending that when the conduct is expressive, courts must provide special protection. Like my prior pieces, (13) this Article fills this gap in Fourth Amendment understanding. Thus, when an individual is engaged in expressive conduct, the Expressive Fourth Amendment mandates that courts review any government intrusion with "scrupulous exactitude," (14) asking whether a police officer behaved reasonably "in the light of the values of freedom of expression." (15) The Expressive Fourth Amendment will protect all activists, but naturally, it should particularly benefit those who are the most frequent victims of capricious police arrest power.

In Part I of this Article, I review the Expressive Fourth Amendment, including its roots and rationale. In Part II, I discuss the criminal statutes that police often use to make arrests during protests and then focus more narrowly on the arrests in New York City in the early days of the George Floyd demonstrations, including the racial makeup of arrestees. In Part III, I explain how the general understanding of the Fourth Amendment places minimal limits on a police officer's ability to arrest, regardless of an individual's engagement in expressive political conduct. Thereafter, I describe how the Expressive Fourth Amendment should apply to arrests and serve to curtail an officer's ability to engage in warrantless arrests of protesters for nonviolent misdemeanors.

1. REVIEWING THE EXPRESSIVE FOURTH AMENDMENT

   Courts should afford protesters enhanced protection in their interactions with police officers in the streets. Putting aside, for purposes of this argument, well-founded objections to courts' deference to law enforcement during routine police encounters, (16) police officers should not be permitted to treat protesters engaged in expressive political conduct like they treat other individuals whom they suspect of criminal conduct but are not involved in protests. Fourth Amendment protections have an expressive component that jurists have completely missed in protest situations. (17) In this Article, I define protest as a public expression of political dissent or opposition. In my prior article, I introduced the Expressive Fourth Amendment in the context of claims of police excessive force and argued that to provide appropriate protection to persons engaged in protest, the analysis should shift from whether the government actor's conduct is reasonable to whether it is reasonable in light of freedom of expression. (18) In the context of excessive force cases, this means that courts should positively weigh activists' expressive conduct in their reasonableness calculus. (19) This rebalancing should result in courts providing less leeway for police officers to use force against protesters than courts provide in cases involving ordinary crimes and nonexpressive disturbances. Here, in this Article, I argue that the Expressive Fourth Amendment also limits how police officers may utilize their arrest power against protesters on the streets, specifically limiting their ability to make warrantless arrests for nonviolent misdemeanors. (20)

   I previously supported the contention that the Fourth Amendment is meant to protect freedom of expression in two ways: First, I harkened to the history of the English Crown's abusive use of its search and seizure power to suppress political nonconformists and showed that history was fresh in the Framers' minds when drafting the Fourth Amendment. (21) Second, I demonstrated that the Supreme Court recognized the difference that historical foundations make in cases dealing with searches for expressive materials, such as books, pamphlets, films, and other publications--namely the "papers" cases. (22)

   The lessons from a British controversy between the king and the press guided the Framers as they conceived the Fourth Amendment's limitations on the American government's power of search and seizure. (23) In 1763, after the anonymous publication of a critique of the king in an antigovernment English newspaper, prosecutors charged the unknown critics with seditious libel and obtained a warrant directing government officials to locate those connected to the libelous publication and arrest them. (24) The warrant did not provide direction regarding where to search or whom to apprehend. (25) Indeed, "[f]ollowing precedent, the warrant specified nothing beyond the [newspaper] printer's name; its bearers were free to search, seize, and arrest as their whims dictated." (26) Armed with this expansive warrant, the king's messengers embarked on a spree, ransacking multiple homes and offices, collecting voluminous papers, and arresting any individual they suspected of being related to the newspaper, including their family members and employees. (27) Victims of these searches brought lawsuits against those involved in the warrant's issuance and execution, arguing against the English Crown's broad power to engage in abusive searches and arrests of political dissidents. (28) The controversy and the ensuing lawsuits captured the attention of both the American colonies and the British and engendered a disdain in both for oppressive government searches that persisted in the new nation's psyche and influenced the Bill of Rights' drafters. (29)

   In a series of cases regarding searches for expressive materials, the Supreme Court explains how this history motivated Fourth Amendment protections. (30) Unlike searches for contraband or other nonexpressive items, the Court reviews searches for expressive materials with "scrupulous exactitude," (31) providing little deference to individual police officers' judgments of what items should be seized out of concern that in their zeal to enforce the law, officers may unwittingly sweep up protected First Amendment papers. (32) Applying this reasoning from the papers cases, just like with searches of expressive materials, when the policed person is engaged in expressive protest activity, courts should ask what is reasonable "in the light of the values of freedom of expression" (33) and then review a police officer's conduct with scrupulous exactitude. (34)

   Shifting courts' inquiry to evaluating reasonableness in light of freedom of expression has consequences not only for police officers' use of force during protests (35) but also for how police officers exercise their arrest power during protests--including their ability to make warrantless arrests and engage in pretextual arrests. (36) Concerns over how deference to individual officers searching through expressive materials endangers freedom of expression are present when officers police and arrest protest participants. As Justice William J. Brennan asserted in relation to one of the papers cases, "[t]he disruptive potential [on the First Amendment] of an effectively...