Policing, protestors, and discretion.

• Author: Burke, Alafair
• Position: Procedural fairness and community policy principles governing police discretion in protest enforcement

Introduction I. Discretion in Enforcement II. Looking Beyond Formal Law: Process and Community A. Procedural Justice B. Community Policing III. Discretion, Police, and Protesters A. Rules of Engagement: Communication and Transparency B. Neutrality C. Culture Conclusion INTRODUCTION

On September 17, 2011, protestors descended upon New York City's Financial District, announcing that they were occupying Wall Street to call attention to the country's growing income disparities and other injustices. (1) The first three reported arrests were of protestors who were accused of wearing masks in public. (2) Another woman was arrested on graffiti charges after drawing on the sidewalk with chalk. (3) As participants marched north toward Union Square one week after the Occupy Wall Street ("Occupy") protests began, tension between police and protestors escalated with approximately eighty arrests and the use of pepper spray by police officers. (4) Protestors posted video footage of the arrests on Facebook, Twitter, and other social networking sites, calling attention to a growing movement. (5) By winter of 2012, Occupy had spread to more than one hundred cities across the country, and clashes between protestors and police clad in riot gear became familiar. (6)

At a party the following spring, a friend of mine who is a New York Police Department (NYPD) detective told me that the media were speculating that the NYPD had acted unlawfully by checking whether participants in the Occupy Wall Street movement were subject to any outstanding arrest warrants. Because I teach Criminal Procedure, I immediately thought through the Fourth Amendment analysis. Neither inquiring about a person's identity nor checking a database for warrants is itself a restraint on liberty or invasion of privacy, and therefore such investigations need not be justified. (7) Even if the warrant check occurred after a seizure, the seizure would be lawful as long as an objective justification existed; an individual officer's subjective desire to use the seizure as a pretext to determine the person's identity and the presence of any outstanding warrants would not affect the lawfulness of the seizure. (8) However, I then considered the question through the lens of the First Amendment and Equal Protection. Critics, I explained, would argue that a check for warrants, if based solely on a person's participation in a protest, discriminates on the basis of the exercise of a fundamental right. (9)

I might have forgotten about the brief conversation with my friend if I hadn't watched three days earlier as uniformed officers descended upon my neighborhood in anticipation of an Occupy march to Union Square Park. Marked patrol vehicles lined both sides of Fourteenth Street. Officers stood side to side, legs spread in a triangle stance. From their body language, I gathered that they were showing their power, preparing for confrontation, although no protest crowds had yet arrived. I assumed at the time that if I construed the image in that light, protestors would as well. That protest, which Occupy supporters later called the "May Day Siege by NYPD," (10) ended with the arrests of at least thirty demonstrators and "occasionally bloody clashes" between police and protestors. (11)

On further reflection, I realized that I had missed an opportunity to answer my detective-friend's question with another question: Why? Even if the law permits warrant checks, why use an Occupy protest as an opportunity for mass warrant checks any more than the NYPD would take the same action at an afternoon street fair or outdoor concert?

Fast forward two months. I was in Portland, Oregon, where I used to be a prosecutor. As I drove past City Hall, I noticed what appeared to be an extensive makeshift campsite outside. But in addition to the sleeping bags and blankets, I saw handmade signs. When I saw some of my local friends later in the week, I asked them about the scene. Their frustration was clear. The protest of the city's anti-camping laws had been going on for more than a month, but the police so far had been leaving the protestors alone, even though at least some of the protestors' activities were in violation of the law. (12) It was time to start making arrests, my friends suggested. (13) I remembered my conversation with the NYPD detective. I thought about all those officers lining the street outside my apartment. I remembered hearing neighborhood residents wonder aloud why police didn't just leave the protestors alone.

This Essay explores the policing of protestors, but it does so in a very limited way. It does not attempt to explore the many disturbing claims that have arisen from the Occupy movement about the legality of individual police responses. Rather, it looks solely to the issue of police discretion in enforcing criminal law against protestors, assuming that criminal law has been violated (14) and that a police response would be lawful, both substantively and procedurally. Specifically, the Essay looks beyond formal law to the literatures on procedural fairness and community policing to discern neutral principles to govern the exercise of police discretion in this context.

Part I of the Essay provides an overview of the role that discretion plays in the policing of protests, presenting the potential for both overenforcement and underenforcement of criminal law. Part II looks to the principles of community policing and procedural justice to guide the exercise of police discretion. In Part III, an application of those general principles to the policing of protestors exposes tensions that exist between community policing and procedural justice philosophies, but also indicates the importance of ex ante, transparent, and neutral decision making by law enforcement.

1. DISCRETION IN ENFORCEMENT

   Policing the conduct of contemporary social movements raises several issues of formal law. Protestors and their supporters argue that police have used excessive force in attempting to restrain and arrest protestors, (15) that police have fabricated the facts used to justify police responses, (16) that law enforcement has resorted to intrusive and unlawful domestic surveillance in monitoring the activities of protestors, (17) and that laws restricting the use of public spaces violate the First Amendment. (18) But even assuming that police conduct is supported by formal law, questions of police discretion remain. When should police enforce criminal law against protestors, and when should they opt for non-enforcement? And, if police are going to intervene, how aggressive should their actions be? Should they warn the protestors? Issue a citation? Arrest?

   Policing of protestors can raise problems of both over- and underenforcement. Traditionally, criminal justice scholars have focused on the problem of overenforcement of criminal law, arguing that overenforcement unleashes undeserved punishment, disproportionately targets minority groups, and reduces individual incentives to comply with criminal law. (19) Applied in the protest context, concerns about overenforcement could include concerns about over-criminalization of conduct perceived to be harmless or minor, (20) such as public camping or wearing masks in public. (21) Overenforcement can also raise separate concerns about selective enforcement, (22) if protestors believe that the law is being enforced against them disproportionately because of their involvement in a protest movement. (23) And it can raise concerns about the degree of law enforcement's response, such as complaints that police used excessive force or resorted to custodial arrests when lesser interventions would have sufficed. (24)

   More recently, scholars have called attention to the potential harms of underenforcement of criminal law. (25) The failure of police to enforce criminal law can embolden criminals, undermine public safety, and deteriorate expectations about law enforcement's willingness to protect members of society equally. Complaints about underenforcement in the protest context could come from neighborhood residents and other private citizens who believe that the protests infringe on their property rights. (26) Neighborhood residents might also complain that the disorder resulting from public camping and other minor offenses contributes to a deterioration of the neighborhood and could contribute to a general sense of lawlessness. (27) Underenforcement of criminal law against protestors can also lead to concerns about equity if police appear to be tolerating conduct from one group of individuals that it would not tolerate from others. (28)

2. LOOKING BEYOND FORMAL LAW: PROCESS AND COMMUNITY

   Formal law does little to prevent either overenforcement or underenforcement. The law gives police broad discretion to act in the face of unlawful conduct. Temporary restrictions on liberty are permitted as long as reasonable suspicion of criminal activity is present. (29) A custodial arrest is permissible as long as probable cause exists to believe the arrestee has committed a crime, (30) no matter how minor the offense. (31) An officer who is justified in stopping or arresting an individual may also use reasonable force to effectuate the seizure, (32) and courts are generally deferential to officers in determining whether the level of force used was reasonable. (33)

   Formal law is even more deferential to police discretion when they choose hot to enforce the law. (34) Absent discriminatory motivations against a protected class, police have unfettered discretion not to arrest a person, despite the strength of the evidence, just as prosecutors can choose to decline charging. (35) As Alexandra Natapoff has observed, "Jurisprudentially speaking, underenforcement is a non-issue." (36) Principles of both procedural justice and community policing demonstrate, however, that the desirability of police conduct generally, and exercises of discretion in particular, should not be...