Why properly policing a movement matters: a response to Alafair Burke's 'Policing, protestors, and discretion'.

• Author: Herbert, Lenese
• Position: In this issue, p. 999

Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. (1)

Introduction I. Police Use of Force and Fourth Amendment "Reasonableness" II. Protestors' Expressive Conduct and the First Amendment III. How Police "See" What Occupy Is Saying Conclusion INTRODUCTION

On September 17, 2011, a group of protesters set up camp in New York City's privately-owned Zuccotti Park to protest America's political and financial systems, the excesses of capitalism, and widening chasm between the very richest Americans, "The 1%," and the rest of the United States, "The 99%." (2) The protest not only caught the attention of millions across the country, but it also spread quickly to other American cities (3) and across the globe. (4) Occupy was lauded as an organic, diverse, grassroots, populist, (5) anarchist, (6) self-governing, consensus-based, (7) direct-action mini-utopian (8) collective of collectives. Not since the Great Depression has a group or individual captured the division in the American economic classes so vividly. Many repeated its pithy rallying cry--"We are The 99%!"--including celebrities, billionaire moguls, renowned musicians, award-winning actors, entertainment tastemakers, and other members of The 1%. (9)

One year later, however, Occupy seems nearly irrelevant. (10) Its protests are no longer headlining newspapers or cable news features. (11) Instead, on its first "Occuversary," (12) Occupy "seems to have lost nearly of all its steam," (13) disappeared, (14) and stalled. It is as if the movement's initial intensity was inversely proportionate to its ultimate legacy.

Reports of Occupy's death may be greatly exaggerated. (15) Few, however, would dispute a grim prognosis. (16) For all of the various causes that many commentators have emphasized, (17) this Article submits that excessive use of force by the police remains one of the most significant, if not primary, causes of Occupy's precipitous decline. (18) Given that the Occupy demonstrations and their protesters were overwhelmingly non-violent, one might expect governmental response to have been muted and measured. It was not. When footage spread of University of California-Davis police Lieutenant John Pike pepper-spraying peacefully seated student protesters as if they were vermin, it shocked and outraged. (19)

It got worse. Jurisdictions deployed overwhelming police force to arrest Occupy protesters and close public fora--actions characterized by some as retaliatory--to prevent arrestees and their supporters from returning and recreating encampments. (20) Aggressive encounters, violent arrests, midnight raids, and phalanxes of officers in state-of-the-art riot gear triggered shock and alarm.

Much of the worst police abuses that were documented occurred in cities with some of the most professionally trained, sophisticated police forces. For example, members of the New York Police Department (NYPD) were condemned for their use of force and other questionable conduct (such as obstruction of the press, surveillance of peaceful political activity, and "kettling," or corralling and trapping protesters). (21) Similarly, the Oakland, California Police Department was swamped with over 1,000 use of force claims (22) and subjected to a 120-page commissioned report that criticized its "outdated, dangerous, and ineffective" policing of Occupy Oakland protestors. (23) The report included, inter alia, the compromised investigation of police use of force against Iraq war veteran and U.S. Marine, Scott Olsen, who was hospitalized in critical condition with a brain injury after an officer shot him in the head with a beanbag. (24) The report made sixty-eight policy, procedure, and training recommendations for improving the Oakland Police Department's handling of future protests. (25)

Initial responses to the use of force against Occupy encouraged protestors and their supporters. (26) Use of force discourse was everywhere. (27) Commentators condemned police use of force as "excessive," (28) "angry," (29) "overly aggressive if not altogether hysterical," (30) "heavy-handed," (31) and "grisly." (32) Early judicial decisions of police use of force during Occupy across the nation seemed largely to favor the Occupiers and their exercise of First Amendment rights. (33) With documented, real-time witnessing of police violence and excess, there was a hope in some quarters that, finally, the larger American society would come to see what too often police are capable of doing to non-violent, peaceful individuals who merely are exercising their rights. It was high time that other members of society hot only see what happens at the hands of the police, but also experience it. Despite the significant initial attention paid to departments' policing of Occupy around the country, however, there remains no significant oversight or overhaul. Modern law enforcement remains largely unchanged.

In her essay Policing, Protestors, and Discretion, (34) Professor Burke asks why--even if the law allows and given officer discretion--would officers police mass gatherings, rallies, and encampments connected with Occupy? Why not leave the Occupy protestors alone? (35) Use of force is always a choice. (36)

This Article discusses why it may be myopic to look at protestors' expressive conduct during political demonstrations through the lens of the Fourth Amendment, as it may ignore or insufficiently protect protestors' First Amendment speech. (37) Expressive conduct that occurs in "high-crime areas" may best be understood "not as behavior indicative of criminality or a basis of criminal suspicion, but as the communication of protest, disaffection, or merely a simple desire to be let alone." (38) Nonetheless, officers are able to exercise their discretion to suppress expressive conduct by stripping it of its communication and translating it as criminally suspicious behavior. By allowing officers to "interpret" protest and dissent as criminal conduct, the Court legitimizes officer discretion as constitutionally reasonable while chilling speech that should, instead, be protected. (39) This Article suggests that until the Court closes the extant loophole regarding retaliatory officer conduct, modern law enforcement departments will continue to exploit it.

1. POLICE USE OF FORCE AND FOURTH AMENDMENT "REASONABLENESS"

   The Fourth Amendment regulates police conduct. (40) It provides that "[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated." (41) A seizure occurs when a reasonable person (1) would not feel "free to leave" or (2) would not feel "free to decline the officers' requests or otherwise terminate the encounter." (42) Under the Fourth Amendment, seizure of the person can occur via a full custodial arrest or an investigatory "stop." (43) The standard for arrest is probable cause, defined as "facts and circumstances sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense." (44) This standard represents "a necessary accommodation between the individual's right to liberty and the [government's] duty to control crime." (45)

   Governmental interests can also justify temporally "brief" seizures of the person on less than probable cause. (46) Investigatory stops--brief seizures--are governed by the Fourth Amendment and are lawful when justified by "reasonable suspicion." (47) Reasonable suspicion exists when an officer can "point to specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant th[e] intrusion." (48) In adopting this formulation, the Supreme Court in Terry v, Ohio (49) emphasized the importance of balancing "the need to search (or seize) against the invasion which the search (or seizure) entails" to determine whether a search or seizure is lawful, (50) as well as judging the officer's conduct against an objective standard. (51) An officer's subjective, even malicious, intent is irrelevant to the evaluation of constitutionality of the stop. (52)

   Regardless of the reasonableness of the seizure (e.g., the officer actually did have probable cause that the person has committed or is committing a crime or that criminality is afoot), the Fourth Amendment requires that its manner of execution also be reasonable. (53) If it is not, even a seizure lawful at its inception can violate the Fourth Amendment. (54)

   Fourth Amendment jurisprudence long has recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. (55) Determining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of "the nature and quality of the intrusion on the individual's Fourth Amendment interests" against the countervailing governmental interests at stake. (56) Under these circumstances, reasonableness requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. (57) In a use-of-force case, the complainant's allegation of excessive force will be judged under a Fourth Amendment reasonableness inquiry: whether the officers' actions are objectively...