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Violence Mars First Day of Republican Convention:
In light of the post I wrote yesterday on the arrests and search warrants targeting groups seeking to disrupt the Republican convention, I thought I would add this update:
  Protesters smashed windows, punctured car tires and threw bottles Monday during an anti-war march to the site of the Republican National Convention. Police used pepper spray in confrontations with demonstrators and arrested five.
  Instead of the single coherent march that organizers had hoped for, fringe groups of anarchists and others wrought havoc along the streets between the state Capitol and the Xcel Energy Center where the convention was taking place. . . .
  About 200 people from a group called Funk the War noisily staged its own separate march. Wearing black clothes, bandanas and gas masks, some of their members smashed windows of cars and stores. They tipped over newspaper boxes, pulled a big trash bin into the street, bent the rear view mirrors on a bus and flipped heavy stone garbage bins on the sidewalks.
  Meanwhile, a group of about 100 anarchists pushed a trash bin filled with trash and threw garbage in the streets and at cars. They also took down orange detour road signs. One of them used a screwdriver to puncture the back tire of a limousine waiting at an intersection and threw a wooden board at the vehicle, denting its side. Another hurled a glass bottle at a charter bus that had stopped at an intersection. The bottle smashed into pieces but didn't appear to damage the bus.
The Associated Press has a photo of protesters exercising their First Amendment right to smash the windows of police cars here.

Related Posts (on one page):

  1. Violence Mars First Day of Republican Convention:
  2. Police Raid Anarchist Groups That Planned to Blockade Republican Convention:
John (mail):
I don't think the police actions here will have any effect on voters, in contrast to what happened in Chicago in 1968.
9.2.2008 12:48am
Waldensian (mail):

The Associated Press has a photo of protesters exercising their First Amendment right to smash the windows of police cars here.

I fail to understand the point of this statement.

Is it snark aimed at people who believe that smashing police car windows is expressive activity protected by the First Amendment?

If so, do such people actually exist?
9.2.2008 12:57am
one of many:

Is it snark aimed at people who believe that smashing police car windows is expressive activity protected by the First Amendment?


Apparently yes, such people exist from how they responsed to the previous post.
9.2.2008 1:04am
MnZ:
Waldensian, I don't know how old you are, but you would be surprised by what juvenile brats think they have the right to do.
9.2.2008 1:06am
OrinKerr:
Waldensian,

If you read the comment thread to the prior post, some commenters thought I was being quite unfair for not being sufficiently respectful of the First Amendment implications of the anarchists' plans to disrupt the convention.
9.2.2008 1:08am
Karen (mail) (www):
Somehow, I doubt three journalists (with tags) from Democracy Now! were planning to smash any windows. But they got manhandled and charged with "conspiracy to riot" anyway.

The window-smashers aren't justified...but they're not the only ones violently overreacting out there.
9.2.2008 1:17am
Waldensian (mail):

If you read the comment thread to the prior post, some commenters thought I was being quite unfair for not being sufficiently respectful of the First Amendment implications of the anarchists' plans to disrupt the convention.

Ah. Well that's what I get for reading from the top down. So I take it this was tongue-in-cheek, and nobody actually claimed First Amendment protection for window breaking? That would be, like, totally stupid.
9.2.2008 1:23am
Oren:
They should have gone with the Portland, OR approach. There used to be a riot every year on MayDay (commies, whatnot). The police would show up, the rioters would fight them, there would be arrests, it was an expensive mess.

Then one year, a brilliant police chief decided on something different. He cordoned off a 6x6 block where the march was supposed to go, towed all the cars, removed all the trash bins, dumpsters, newspaper boxes and anything else that wasn't bolted to the ground -- basically made the place child-proof. There was nothing to throw, nothing to smash, no police to ignite the crowd's anger. It's very hard to riot when there literally isn't anything or anyone against which to riot. Analysis shows he saved the city at least $300,000 in overtime, legal costs and cleanup.

Even if the police are 100% right about the scum in the streets that are just spoiling for a fight, the non-confrontational approach just seems a lot more logical to me. Plus, it's hard to argue with saved taxpayer $$$$.
9.2.2008 1:24am
OrinKerr:
Karen,

I'm curious: If smashing a police car window isn't violently overreacting, how would you characterize it?

Also, do you have any links on what the persons who were arrested were doing before they were arrested? I looked for it, but could only find video after the police made the arrests.
9.2.2008 1:24am
MnZ:
Karen, I agree.

How dare those police officers arrest someone who refuses an order to move? I mean she isn't one of those dirty proles...she is a journalist.
9.2.2008 1:25am
Oren:
[Deleted by OK on civility grounds.]
9.2.2008 1:26am
OrinKerr:
Waldesian,

Stupid? You are obviously a fascist who always thinks the police are right about everything.
9.2.2008 1:26am
TruePath (mail) (www):
Orin,

I think you misunderstood the position many of us were taking. I don't remember a single comment in the other thread defending the right of the protestors to engage in this sort of illegal activity of violence. Rather, some of us were concerned about the implications of arresting these individuals before they had actually engaged in these acts. I think most people here agree the behavior described above ought not to be tolerated but some of us think that preemptive arrests on conspiracy charges for planned protests creates a danger of sliding towards the use of these charges to interfere or obstruct annoying but legal protests.

Disagreeing with police tactics to stop an activity does not indicate sympathy for the activity nor the belief that it should be allowed to occur unchecked.

----

As far as this actual behavior goes it continues to astound me how stupid and idiotic these people are. I mean putting aside the issue of whether these tactics are a justifiable means to achieve their ends no sane person who thought about it would conclude that this sort of anti-social behavior would achieve their goal. I mean being a dick about stopping the war just makes people hate you and taints your cause it doesn't convince anyone!

It's the tendency to engage in stupid emotional outlash that disabused me of any interest in participating in political activism at berkeley. I mean why the hell would you think that chaining yourself to things or delivering pot plants to the DEA in oakland (no one did that but it was suggested) is a good way to achieve your end!!

Sigh, it just goes to show you the power of tradition and group think.
9.2.2008 1:28am
MnZ:
Oren, the problem with the Portland approach is that it would basically require the police to shut down the convention and that is precisely one of the rioters' primary goals.
9.2.2008 1:29am
OrinKerr:
TruePath,

Um, of course. I was just poking fun, obviously.
9.2.2008 1:31am
Oren:
OK, I was serious about the TN v. Gardner part !
9.2.2008 1:31am
Karen (mail) (www):
OrinKerr:

You'll note that I said "not the *only* ones violently overreacting". I was saying that the window-smashers *were* violently overreacting...and implying that so too were some of the cops.

The previous link linked back to the WaPo article, where Amy Goodman tells us what she was doing at the time of the arrest:

"I was down on the convention floor interviewing delegates when I heard that two of our producers had been arrested," said Goodman. "I ran down to Jackson and 7th Street, where the police had moved in."

Goodman said that when she ran up to find out what was going on, she was also arrested.


Don't know what the two producers did to get the police's attention--but by this account Amy was first interviewing delegates, then asking why they were hauling her producers away.
9.2.2008 1:32am
OrinKerr:
Oren,

I don't normally edit out offensive parts of posts and leave the rest -- takes too much time. Although I will take that an an apology for being crude, and I accept your apology.

Anyway, pepper spray and the like ain't deadly force. Indeed, it's not even a search or a seizure, so it could only come up as a due process issue.
9.2.2008 1:35am
Viceroy:
Something worth keeping in mind here. The "police" in both the case of the ABC reporter arrested in Denver, and in the case of the Democracy Now reporters are local police. It's tough to tie them directly to any sort of federal policy (or Bush agenda).

That said, I'm sure the RNC and DNC probably had some influence over the situation.

In Ms. Goodman's case I'm guessing the local law enforcement folks are going to be writing a check and/or dealing with a long drawn out lawsuit (and hopefully issuing an apology). The video of her arrest is online and there's no way what the police did was even remotely justified (or falls under the legal buffer afforded to law enforcement in the face of civil lawsuits).
9.2.2008 1:35am
TruePath (mail) (www):
As an aside much of what motivates this is simply a desire to act out and break the rules.

I mean violating the law/rules/etc in the name of some greater good is a very romantic idea. It's not just something that appeals to crazy liberal protestors, it's also pervasively portrayed in hollywood movies. I mean virtually every action flick ever has the hero breaking fucktons of laws or standard procedures so he can save the day. Even the relatively staid law and order likes to have McCoy stretch his ethical/legal responsibilities because the situation is so important.

If you talk to many of these people it becomes clear that they are looking for an excuse to do this and the mythos of civil disobedience in the 60s and wild eyed rhetoric lets them convince themselves they are morally justified in behaving in these bad ways.

Not a defense just an analysis of what is going on.
9.2.2008 1:35am
TruePath (mail) (www):
Orin,

Sorry to miss you humor :-). I didn't see the tongue in check comment before I posted.
9.2.2008 1:37am
OrinKerr:
Karen,

I understand -- my apologies for misreading you.

As for Goodman's account, do you consider her a credible source? I know her best from her ranting and raving about the Patriot Act back in 2001-03, and she was lying through her teeth about what was in the Patriot Act at the time: I have never seen someone trying to spread so many absurd lies in order to try to gain sympathy for a political cause. Maybe she is more truthful and honest now, a few years later, but in light of what she said back then about the Patriot Act, I think I would prefer videotape over Goodman's account.
9.2.2008 1:38am
Oren:

I don't normally edit out offensive parts of posts and leave the rest -- takes too much time. Although I will take that an an apology for being crude, and I accept your apology.

Eminently reasonable, and I do apologize.


Anyway, pepper spray and the like ain't deadly force. Indeed, it's not even a search or a seizure, so it could only come up as a due process issue.

I would think a projectile canister of tear gas, which are very rarely fatal, would still qualify as quasi-deadly force. Can the police fire rubber bullets at fleeing felony-suspects?
9.2.2008 1:41am
Oren:

Maybe she is more truthful and honest now, a few years later, but in light of what she said back then about the Patriot Act, I think I would prefer videotape over Goodman's account.



Ask and ye shall receive.
9.2.2008 1:41am
OrinKerr:
TruePath,

Of course -- no prob. I shouldn't have said "obviously" --maybe it wasn't so obvious.

I completely agree with you about the protests and where they are coming from, and also about how counterproductive they are. It reminds me of the World Bank protest here in DC around 2003 or so. The World Bank is a block from GW, so I went to the police line to watch. There were a bunch of white college-age kids protesting and trying to get the police standing to see the violence in the system. So they start talking to this cop, an African American guy in his 30s, trying to convince him that he should join them and overthrow the political order. The guy is dressed up in his police gear, and he very earnestly explains to them that he's just trying to earn a paycheck to feed his wife and kids and give them a decent life; that he's pulled himself up from his bootstraps and made a pretty good life for himself working to protect public safety; and that his only goal for the day was for the World Bank meeting to go on without anyone getting hurt. The kids were really blown away by this: It was like, so authentic. So they told the cop that they thought he was cool and they totally understood, and then they stood there sort of sheepishly, like they weren't quite sure what they were doing there. Classic.
9.2.2008 1:48am
OrinKerr:
Oren,

Yes, I saw that video tape -- I was looking for the video tape of the minute or so before hand.
9.2.2008 1:48am
Oren:
From what I read, that tape is all there is of Goodman's arrest.

Great story about the WB protest.
9.2.2008 1:56am
Soronel Haetir (mail):
What makes even less sense to me are the home team victory riots after sporting events. I could /almost/ understand a defeat riot, but come on, a victory riot?
9.2.2008 1:59am
cvt:
Orin Kerr:

The videotape shows Amy Goodman taking a few steps and then a police officer starts telling her "sidewalk now." When she tries to talk to him, he has her arrested. Do you think that shows a reason for her to be arrested? Do you think that something happened the minute before to explain the arrest? What would that be?
9.2.2008 2:07am
joshers (mail):
Police exercising their right to self defense by pepper spraying an unarmed civilian (she's holding a flower) at close range here: http://www.indybay.org/uploads/2008/09/01/pepper.mpg
9.2.2008 2:10am
cvt:
According to the Washington Post, Donna Brazile was pepper sprayed while she was walking into the convention center. I guess the police were just trying to stop the riot.
9.2.2008 2:18am
OrinKerr:
cvt,

Tjhere are two questions: Was the arrest legal? And second, was the arrest a wise decision in context?

On the legal question, I think there's enough legally to arrest Goodman based on the tape. Here's my thinking. Goodman doesn't just "try to talk to him," as you say: she repeatedly refuses to obey his order, to the point where once he pushes her back to the permitted protest zone she actually pushes back into him to try to get past him. Assuming we agree that it was a lawful order -- and if you disagree, we can get to that -- then I would think this is the misdemeanor of disobeying the lawful order of a police officer. Do you disagree? If so, let me know, and we can hash it out.

The reason I wanted to get more of the tape was to get a sense of was whether the decision to arrest here was a sensible one based on the full context of what happened. It may be have been perfectly legal but nonetheless bad judgment in the grand scheme of things. If there was a prelude to what happened before the tape, it may give us more context.
9.2.2008 2:18am
OrinKerr:
joshers,

I'm curious: What difference does it make that she was holding a flower?
9.2.2008 2:21am
Psalm91 (mail):
Goodman is a very credible source, and the videotape supports the assertion that the arrest was unwarranted. She certainly was no threat to the massed officers. She is a well known journalist, whether you agree with her positions or not, and one would expect she is a "prize" arrestee. Arrests had to be made to justify the elaborate and very expensive security efforts. The only missing player is Blackwater.
9.2.2008 2:22am
Psalm91 (mail):
Re the "violence mars" headline, the results obtained were exactly those which were planned for; the "preemptive" arrests were intended to provoke those who might not have otherwise acted. The event would have been marred in the view of the planners if there had been no violence.
9.2.2008 2:25am
Lyle (mail):
She got arrested for not obeying them. She walked right into their line, which is a no no, and didn't move back away from them when she was told.

It's ridiculous, but she knew what was going to happen. Amy Goodman isn't stupid.
9.2.2008 2:30am
AKD:
I will echo that Amy Goodman knew exactly what she was doing and achieved her goals.
9.2.2008 2:34am
neurodoc:
...Maybe she is more truthful and honest now, a few years later...
Just turn to WPFW, the local Pacifica station at 89.3 on your FM dial. You will find she is very much the same person now as then.
9.2.2008 2:50am
EH (mail):
I will echo that Amy Goodman knew exactly what she was doing and achieved her goals.

Who are you and what do you know?
9.2.2008 2:52am
TruthInAdvertising:
One might give more credence to some of these claims by the police if they weren't arresting and charging journalists with charges of rioting. I'm sure in the heat of the sweep, it's easy to have journalists fall in among the protesters. But for police to claim that they can't differentiate between the two and to actually arrest photographers on rioting charges seems to be overkill. I expect police to be able to do their job and if that means allowing them to sweep up rioters, it also means that they have enough sense to be able to tell the difference between those throwing bricks and those taking photos.
9.2.2008 2:53am
OrinKerr:
Neurodoc,

I listen occasionally -- how can a law professor who loves jazz turn down a show called "Jazz and Justice"? The only way to appeal to me more would be if the show were titled, "Jazz, Justice, and Beer." But that would be almost too much.
9.2.2008 2:53am
OrinKerr:
TruthInAdvertising,

I'd love to get your thoughts on my 1:18 am comment.
9.2.2008 2:55am
cvt:
Orin Kerr,

According to this interview by the SF Chronicle with Amy Goodman after her release (scroll down), she was arrested for "obstructing legal process -- interfering with peace officer." I'm not sure that's the same as disobeying a lawful order, but there is nothing on the video of her arrest that shows her interfering with anything the police officer was doing at the time. He was just standing there when she walked up to him.

Second, I don't know whether it was a lawful order to tell her to lie down on the sidewalk but I don't see any thing on the video that made it reasonable for him to order her to lie down on the sidewalk.

Third, as to what the context of the arrest was, she said in the interview that she wanted to talk to the commanding officer to get her producers released. That looks like what happened on the video of her arrest.
9.2.2008 2:56am
OrinKerr:
cvt,

I assume you are not a lawyer, but if a police officer issues a lawful order, and you refuse, and he issues it again, and you refuse again, and he uses force against you to get you to obey, and you push back against him and try to go back where you were, that is indeed generally going to be "obstructing legal process --- interfering with police officer." You don't have to actually interfere with what the officer was doing, or hit the officer, or punch him, or do anything like that.

As I understand it, the order was not to lie down on the sidewalk: It was to go back to the sidewalk, which I believe was the permitted protest area. That's my understanding, at least. Finally, there is no special legal rule for reporters; they don't get to ignore lawful police orders on the ground that they want to speak to supervisors rather than obey the police.
9.2.2008 3:01am
Dilan Esper (mail) (www):
What True Path said. Professor Kerr continues to be flippant about the distinction between, say, the police breaking up the plans of a drug distribution wing on a showing of probable cause and the police breaking up a political protest by arresting people who plan to protest. The first does not implicate the First Amendment and is governed based on a probable cause standard; the latter implicates the First Amendment and is constitutional only if probable cause can be shown exclusive of any expressive activities or if the prior restraint test is met (i.e., strict or super-strict scrutiny).

Yes, that means that sometimes there's going to be violence before the police can act. That's the whole point. In the First Amendment arena, the police aren't allowed to use threats of violence as an excuse to round up political dissidents and stop a protest. Rather, in most cases, they have to wait until the violence occurs and then move in.
9.2.2008 3:03am
neurodoc:
...I listen occasionally...
Then, why say, "Maybe she is more truthful and honest now, a few years later..."? Have you ever heard her offer anything other than the most mindless leftist cant? (BTW, I don't know whether she is "dishonest," because that would require her to know that what she was saying was wrong, wouldn't it? I'm willing to accept that she is a true believer in the nonsense she spouts rather than that she is a cynical propagandist.)

And sure, feel free to listen for the jazz; I do myself. (I also listen to her at times just to marvel at the lunatic point of view.)
9.2.2008 3:12am
MnZ:
cvt, Goodman - by her own admission - was interfering with the police's ability to arrest her producers. In the midst of a riot, the police do not really have time to debate with every Tom-Dick-and-Harry about the merits of each arrest that they are making.

I would really like to know how the police critics on this board would propose that the police deal with a riot. A riot disrupts the peace, destroys property, and can cause injury and even deaths of innocent people. Therefore, it is important for the police to put down a riot. Some questionable arrests and the exposure of some innocent people to pepper spray are probably unavoidable and seem like a small price to pay to prevent a riot from getting out of control.
9.2.2008 3:16am
OrinKerr:
Have you ever heard her offer anything other than the most mindless leftist cant?

Well, no. But it's pretty fun to listen to mindless leftist cant sometimes.
9.2.2008 3:18am
neurodoc:
Dilan Esper, can you cite some on point case law in support of your contention that even if the police had good evidence that unlawful activity was being planned and organized, they would have to wait until the violent conduct was underway before trying to frustrate it? Or are you just expressing doubt that the police did indeed have reliable evidence there was serious planning and organizing to those ends before the arrests were made?
9.2.2008 3:22am
MnZ:

Yes, that means that sometimes there's going to be violence before the police can act. In the First Amendment arena, the police aren't allowed to use threats of violence as an excuse to round up political dissidents and stop a protest. Rather, in most cases, they have to wait until the violence occurs and then move in.


So, the police can break up a violent conspiracy only if the violence is not political in nature. OK...
9.2.2008 3:26am
neurodoc:
Well, no. But it's pretty fun to listen to mindless leftist cant sometimes.
Yes, and one can get as much of that as they want listening to Ms. Goodman and her Pacifica confreres. Little to engage with there intellectually, it is so utterly mindless. Now when I fear my blood pressure may be dropping too low, I turn to the less lunatic, far more malignant left for stimulation, like Alec Cockburn, a true piece of work (but without the jazz accompaniment).
9.2.2008 3:29am
EH (mail):
MnZ:
So, the police can break up a violent conspiracy...


You haven't seen the inventory from the raid yet?
9.2.2008 3:32am
Bruce Hayden (mail) (www):
It appears that not all of the protesters are nonviolent. Apparently, they have been throwing bags of cement from overpasses onto buses going to the convention, and surrounded a bus of Boy Scouts and rocked their bus back and forth. If the bags of cement hit the windows, there could be some casualties.
9.2.2008 3:33am
OrinKerr:
Yes, that means that sometimes there's going to be violence before the police can act. That's the whole point. In the First Amendment arena, the police aren't allowed to use threats of violence as an excuse to round up political dissidents and stop a protest. Rather, in most cases, they have to wait until the violence occurs and then move in.

Cases, please. The Kimba Wood opinion from yesterday doesn't do the trick: for reasons I offered in the earlier thread, it's about 180 degrees from that. In particular, I'd love to see cases saying that the police can't stop physical violence designed to interfere with speech -- presumably on the ground that such conduct would improperly interfere with the interference of speech.
9.2.2008 3:37am
cvt:

if a police officer issues a lawful order, and you refuse, and he issues it again, and you refuse again, and he uses force against you to get you to obey, and you push back against him and try to go back where you were, that is indeed generally going to be "obstructing legal process --- interfering with police officer."


Orin Kerr:
It depends on what the order was (ie, whether it was lawful). I admit, it hadn't occurred to me that he was just telling her to go back to the sidewalk. It looks to me like he was trying to push her down, but I see why you could interpret it differently.
9.2.2008 3:49am
theobromophile (www):
Y'all need a "tongue in cheek" button right between "strike" and "blockquote." ;)

Instead of the single coherent march that organizers had hoped for, fringe groups of anarchists....

Someone expected anarchists to form a "single, coherent march"? Isn't that a bit like saying, "Instead of donning aprons and baking pies, the NOW members...."
9.2.2008 3:56am
whit:

Even the relatively staid law and order likes to have McCoy stretch his ethical/legal responsibilities because the situation is so important


y'know, i've mentioned several times what i refer to as "jack mccoy'ism" (note: it's not a complimentary term). as a law and order type myself, i DETEST jack mccoy's sanctimony and his constant attempt to lay blame even where none should be laid (at least criminally). jack mccoy frequently makes me ROOT FOR THE BAD GUY, and i'm not just talking about cases where the bad guy might be innocent, but cases where i KNOW he's guilty but I don't care because mccoy is so vile.

seriously. i love law and order (not the spinoffs, though). it's the ONLY drama teevee i watch. but i really cannot STAND his tactics or his mindset. he's the worst kind of prosecutor - a liberal, holier than thou, biased, sanctimonious, blame laying, ninny.

blech
9.2.2008 4:06am
LarryA (mail) (www):
What makes even less sense to me are the home team victory riots after sporting events. I could /almost/ understand a defeat riot, but come on, a victory riot?
There's usually a lot of alcohol involved, and mob psychology. One reason I was proud of San Antonio's response to recent Spurs championships. Family-friendly parties.

OTOH the Spurs team and the individual players are class acts as well, and set a good example.
She certainly was no threat to the massed officers.
Not as an individual, perhaps. But in a riot/near riot situation officers need to be able to focus on troublemakers, and stay alert to developing situations, in the midst of a high-adrenaline rush.

A person who refuses to stay in a designated area, and particularly is acting in a manner calculated to focus officer attention on herself, is at best a distraction they don't need. At worst she ends up between a cop and a violent protestor and gets herself or someone else hurt or killed. LEOs in riot control mode do not have time to talk to reporters.

Note that I'm not one who usually favors the police. But situations like this can turn violent in a heartbeat.
I expect police to be able to do their job and if that means allowing them to sweep up rioters, it also means that they have enough sense to be able to tell the difference between those throwing bricks and those taking photos.
Note for next riot: Carry a camera.

My wife is a reporter on a weekly paper, so she's also a photographer. (Degree in photojournalism.) When she's taking pictures she pays no attention to what's going on around her. If it's in the lens, it doesn't affect her. I've known a lot of journalists who are the same way.

If you think cops take heat for arresting a journalist, guess what happens if they "let" one get killed.
It depends on what the order was (ie, whether it was lawful).
Rule of thumb: In a near-riot situation, presume the order is lawful and obey it. There will be time later to coolly debate the fine points.
9.2.2008 4:07am
Oren:

Rule of thumb: In a near-riot situation, presume the order is lawful and obey it. There will be time later to coolly debate the fine points.
You mean like later in court after the 2004 RNC where hundreds of cases were thrown out and hundreds of thousands of dollars were paid to settle civil claims?

Maybe in four years, we'll all the details on this one too.
9.2.2008 4:22am
Oren:

Rule of thumb: In a near-riot situation, presume the order is lawful and obey it.

BTW, NYC's record, 1700+ dismissals out of 1800 arrested. That's some fine police work Lou.
9.2.2008 4:23am
whit:

BTW, NYC's record, 1700+ dismissals out of 1800 arrested. That's some fine police work Lou.



that's not surprising. during WTO our goal was not to make winnable cases. our goal was to protect the innocents, the peaceful protestors, and property. arrests were (one of many) means to help achieve that goal.

arrest teams made arrests and moved on. were reports written right after the fact? nope. when you are one 18+ hours, and making a dozen or more arrests are the facts gonna blend together and make it next to impossible to right a good report on each one? hell ya. does it really matter?

in a riot situation, there are simply far more important considerations. do you pull a seattle PD and do what their watch commander did during the mardi gras riots and ORDER your police NOT to engage the crowd and make arrests but to stand on the corners and watch the rioting (yes, that's what the idiot manager ordered them to do)? well, you could do that. no arrests were made before christopher kime was murdered trying to save a girl in distress. that's FAR preferable ot making an arrest that couldn't later be proved in court beyond a reasonable doubt (note: sarcasm) because of the chaos of the riot.

do you stay off the streets and write your reports and make sure you took sufficient notes, while fellow officers are being overrun or do you get BACK INTO THE FRAY and say the screw the paperwork? i know the correct answer.

riots aren't pretty and the sad truth is that a fair # of innocents are gonna get hurt and/or peppersprayed. some are even going to get arrested and then the case will be later dismissed (oh NO!). that's reality.

rightly so, the courts are going to require chain of evidence, sufficient evidence, and all the other niceties to get a conviction. groovy. but that is far from the first order of business when you are quelling a riot, saving people and property from physical harm and working your hardest to get the instigators off the street before they cause more mayhem and bloodshed. i know that in WTO in seattle (and seattle compared very favorably to the aftermath in europe for WTO), there were some minor injuries, and no deaths despite the arrests, the pepper spraying, the cadres of cops and the intense rioting. iow, that's a good thing.

i can't speak for NYC but i know what happened in seattle. i witnesses scores of crimes where arrests were simply not possible, and several arrests where I never even submitted any paperwork despite the fact that i was one of many witnesses that could have helped but we simply didn't have the time. i have no idea who even wrote the reports or whatever.

unless you've been IN a riot, you simply don't understand. it's not pinochle.
9.2.2008 4:44am
Jerome Cole (mail) (www):
Anarchists? That reminds me of Eugene, Oregon. At my alma mater, the University of Oregon, a fair portion of the student body would riot every term. The unrest around the time of Halloween was always especially fun. I'm no lefty, but some friends and I once took advantage of the mayhem to steal street signs that happened to bear our names.

Now that we mention anarchists I think it would be great if they had long curled mustaches, hurled spherical bombs with long fuses, and wore capes. That would be cool. Unfortunately, the anarchists of today are more likely to look and smell like homeless people.
9.2.2008 4:46am
Malvolio:
i love law and order (not the spinoffs, though). it's the ONLY drama teevee i watch. but i really cannot STAND his tactics or his mindset. he's the worst kind of prosecutor - a liberal, holier than thou, biased, sanctimonious, blame laying, ninny.
I agree wholeheartedly but I think, I think (hope, wish, pray) that the effect is deliberate on the part of the show's producers.
9.2.2008 6:18am
J. Aldridge:
I'm sure the protesters can find an sympathetic judge to rule they cannot be charged for exercising their First Amendment rights.
9.2.2008 8:06am
Happyshooter:
Give them a whiff of the grape and move on, that will avoid all the arrest and other legal questions.
9.2.2008 9:31am
Anderson (mail):
Practically, if there's a quasi-riot situation with some people being disorderly, and I want to advise the police *not* to mess with the other people ...

... then I had better be hyper-civil to the police, assume a nonthreatening posture (arms at my side for ex), and not imitate a disorderly person.

(1) Police don't have time to figure out if the person yelling and carrying on is a danger or not, in a crowd situation.

(2) Police have weapons.

I have no trouble believing that police overreact to crowd situations, but knowing that, one should act accordingly. Unless one's goal is to get arrested and quote a Monty Python skit.
9.2.2008 10:32am
Charlie (Colorado) (mail):
According to the Washington Post, Donna Brazile was pepper sprayed while she was walking into the convention center. I guess the police were just trying to stop the riot.

They were just afraid she would start talking and they'd have to listen to her.
9.2.2008 11:10am
Ken Arromdee:
during WTO our goal was not to make winnable cases. our goal was to protect the innocents, the peaceful protestors, and property. arrests were (one of many) means to help achieve that goal

Paperwork for arrests isn't done for fun. It's done because the only way we have to assure that arrests are not abused, either deliberately or out of recklessness, is to have that paperwork. If 1700 out of 1800 arrests lack proof that the person arrested did something that deserved arresting, that means that the police have tried to bypass the safeguards against abusing arrests.
9.2.2008 11:16am
Charlie (Colorado) (mail):
Now that we mention anarchists I think it would be great if they had long curled mustaches, hurled spherical bombs with long fuses, and wore capes. That would be cool.

Comment of the day.
9.2.2008 11:20am
Dave D. (mail):
...Aw, lay off her ! Amy was just renewing her subscription to the Sisterhood-of-traveling-jerks and buttressing her faded bonifides. Anybody who's ever been to a window breaking public party knows how much fun the participants are having. And baiting the cops is akin to teasing the zoo lions. Those up front, within baton and pepper spray range, are naifs or morons. The real smart and experienced ones are in the back, unreachable by the uniforms. Everyone has camera's now and there is a lot more recorded about Amy's arrest than you will ever see. From both sides.
...Photog's have two choices; get behind police lines and take shots of the protesters, face on, and get rocked and bottled along with the coppers, or get down and dirty on the protester side and take face shots of the helmeted hordes while getting sprayed and thumped if that's how it ends up. No, you can't go back and forth. Pick your side and stick with it.
..Don't be so sure the Minni-cop knew he was dealing with the Famous and Well Recognized Pacifica Personality. He may just have thought it was your standard issue obnoxious and self important puke who wanted to playact her way into the pokee.
9.2.2008 11:38am
MnZ:

Paperwork for arrests isn't done for fun. It's done because the only way we have to assure that arrests are not abused, either deliberately or out of recklessness, is to have that paperwork. If 1700 out of 1800 arrests lack proof that the person arrested did something that deserved arresting, that means that the police have tried to bypass the safeguards against abusing arrests.


It's not just the paperwork. If the DA is going to prosecute, don't the arresting officers need to testify. Since officers are involved in several arrests during the day, post-riot prosecutions for every crime committed could tie up a large share of the police force for months.
9.2.2008 12:10pm
Harper Jean Tobinq (mail) (www):
While the aggressive property-damage tactics of the protesters are clearly illegal and arguably discredit their cause, I think it is misleading to label them as "violence." This is mass vandalism, which is more theft than violence - and still a crime, of course. My understanding is that many of these rad-left and anarchist activists take what they view as a principled position that some kinds of property damage in the service of their cause is morally acceptable but at the same time would strenuously oppose any violence against persons. Aggressive tactics like these typically create some risk of violence to persons, although - unlike the bombings of the Weatherman, which targeted property but predictably had human casualties - the people who get hurt in these "street actions" are almost invariably the protesters themselves.
9.2.2008 12:11pm
Oren:

arrest teams made arrests and moved on. were reports written right after the fact? nope. when you are one 18+ hours, and making a dozen or more arrests are the facts gonna blend together and make it next to impossible to right a good report on each one? hell ya. does it really matter?

Well, whit, according to both Federal and State courts, yes it does matter. As I said earlier, the settlements are at ~$500,000 and many of the suits still pend.

Unfortunately for your lesser-morally upright brothers in blue, at least 400 of those arrests were later shown be videotape evidence to be based on outright fabrications by the police. Which is, of course, the logical extension of your "clear the streets by any means" logic, even if it that's not the intent.
9.2.2008 12:26pm
GMUSL '07 Alum (mail):
There's an interesting underlying similarity between police officers' arrests during riots and military detention during war time.

In both cases, the goal is not to punish or to kill; the point is to keep the hostiles off the battlefield (so to speak) and to preserve public order and human life and safety.

I think that people are failing to draw a distinction between an arrest-for-prosecution-or-investigation (which is what we would normally consider an arrest) and an arrest-for-removal, which is what riot police are doing, which is more akin to involuntary protective custody. Nor are riot police the only ones who arrest without serious intent to prosecute; it is not that rare of an occurrence.
9.2.2008 12:34pm
Dave D. (mail):
..$500,000 ? Cheap at twice the price. Hell, Seattle saved $300,000 by just giving the protesters what they wanted. That's what San francisco did during the Harvey Milk riots. Let it burn. It's cheaper than arresting them.
...Years or probably days from now, these Adam Henry's will be telling us they regret " not doing more " to stop the RNC. If I were the judge that poor Amy appears in front of, I'd dismiss in the interest of justice, but first I'd make her comb her hair in the interest of hygiene and public health. Me and Potter know obscenity when we see it.
9.2.2008 12:45pm
Oren:

and an arrest-for-removal, which is what riot police are doing, which is more akin to involuntary protective custody

Also completely illegal if the officer does not have probable cause to believe that the arrestee actually violated the law. Sort of disgusting to compare the streets of a convention to a war zone, don't you think -- at least to me it cheapens the entire point.
9.2.2008 12:52pm
Dave D. (mail):
...Pretty hard to cheapen the entire point below a feces coated brick in the face, Oren.
9.2.2008 1:06pm
GMUSL '07 Alum (mail):
The streets of a convention? Sure. The streets of a riot? Not at all.

And I never said anything about failing to actually violate the law; just that they can arrest without intent to prosecute. Unfortunately, disobeying a direct order from a cop is arrest-worthy, as is well established.
9.2.2008 1:14pm
JohnKT (mail):
Don't forget, there were a number of arrests at the DNC.

Do a Google on "dnc police arrest" and "rnc police arrest".

Somehow, our police actions remind me of police actions in the PRC. I know, terribly misguided of me.

As for the "anarchist" smashing the police car window: How did AP know he was an anarchist? Maybe he was an agent provocateur, except our police don't do things like that. Still, I can't find in Google that anybody was arrested for vandalism. Just some reporters and a lot of protesters who had registered to demonstrate.

You know, in China citizens could apply to protest during the Olympics. But if you applied, you were arrested.

Why wasn't the vandal arrested?
9.2.2008 1:19pm
Brad D. Bailey (mail):
Right of free speech does not embrace right to snuff out free speech of others.
Schwitzgebel v. City of Strongsville, 898 F.Supp. 1208 (1995)


Seems the protesters haven't read that case.
9.2.2008 2:30pm
Michael McNeil (mail) (www):
It went far beyond mere property damage or even tossed feces-covered bricks. As was mentioned above and Gatewaypundit reported yesterday, anarchist thugs heaved heavy bags of cement off overpasses onto buses to the conference passing below; one hit the bus GP was riding on, though no one was injured fortunately. This is attempted murder.
9.2.2008 2:57pm
LarryA (mail) (www):
My understanding is that many of these rad-left and anarchist activists take what they view as a principled position that some kinds of property damage in the service of their cause is morally acceptable but at the same time would strenuously oppose any violence against persons.
Right. Because having your car torched, your building vandalized, your merchandise stolen, and your neighborhood trashed doesn't really "hurt." Property damage is violence against the property owner.

Meanwhile, law enforcement isn't responding to other potentially life-threatening situations and tax dollars are circling the drain.

I notice that "some kind of property damage" seldom seems to include the protester's property.
Aggressive tactics like these typically create some risk of violence to persons, although - unlike the bombings of the Weatherman, which targeted property but predictably had human casualties - the people who get hurt in these "street actions" are almost invariably the protesters themselves.
But this is only true if law enforcement keeps the riot under control, using the tactics you are protesting.
9.2.2008 3:13pm
Dilan Esper (mail) (www):
In particular, I'd love to see cases saying that the police can't stop physical violence designed to interfere with speech

Professor, you are misreading Judge Wood's opinion and ignoring the other cases she cites.

In each case, arrests pursuant to a lawful arrest are subjected to the prior restraint test because they target expressive activity.

The point isn't that the police can never intervene; it's that simply having a lawful arrest warrant isn't enough when we are talking about arresting people to shut down a protest. They have to meet a higher threshold of proof because such arrests are a form of prior restraint.
9.2.2008 3:21pm
Dilan Esper (mail) (www):
I might add one other line of cases that supports this. The incitement cases, including Brandenburg, protect advocacy of violence from ANY punishment-- even subsequent punishment, which isn't even a prior restraint-- absent a showing beyond a reasonable doubt that the advocacy was expressly intended to cause violence AND had an imminent likelihood of doing so.

So, if the protesters are popping off on the internet about how they intend to start a riot, there would be a heavy burden to even prosecute them for inciting a riot after one took place, let alone arresting them in advance.

I am really starting to conclude that Professor Kerr doesn't understand that a lot of what he considers "violence" is in fact privileged First Amendment activity under various doctrines.
9.2.2008 3:25pm
Toby:
It never fails to amaze me that those who feel that nude dancing, vandalism, and assoult are free speech often consider that discussing the candidates actual positions in public within 60 days of an ellection is not.
9.2.2008 4:47pm
elim:
why call them anarchists? can't we call them by what they actually are-Democrats? unless I missed something about "anarchists" attacking Democratic delegates and their buses at the earlier convention, what other name fits?
9.2.2008 4:53pm
Dilan Esper (mail) (www):
Toby:

For the record, I think that McCain-Feingold is unconstitutional.

And I don't think vandalism and assault are free speech (nude dancing should be protected, however); rather, the rules that make it difficult for the state to go after protesters on the ground that protests may turn violent are grounded in the fact that such actions have often been used to shut down legitimate protests. It's just like the New York Times v. Sullivan rule-- we protect some forms of libel and slander not because libel and slander themselves have value, but rather because libel and slander actions have been used to try and suppress critical discourse about public figures and issues of public concern.
9.2.2008 5:22pm
Al Maviva (mail):
Dilan, you need to distinguish between advocacy of violence, which is protected, and actually planning for it, which is criminal conspiracy, speech as acts.
9.2.2008 5:27pm
Oren:

Pretty hard to cheapen the entire point below a feces coated brick in the face, Oren.

Absolutely! This is why I think the police are quite backwards at arresting many and trying none (OK, the DA tries, but you get the idea). When you think about it, it's ridiculous that a real "black bandanna" anarchist type will serve the same "sentence" as a peaceful or mildly-disobedient protester. From an incentives point of view, there is little reason for a protester to slip from peaceful/mildly-disobedient to violence because there is basically no additional penalty.

Instead, how about getting very solid evidence against the most egregious rioters (e.g. have the police videotape a guy smashing a window and then swarm him), fill out the paper work, and make a felony riot charge stick (including whatever paperwork was necessary). Let the real troublemakers serve a few months in the pokey instead of rounding up 1800 people, 1400 of which are innocent, and having them all walk.

Such a policy would have the added benefit of being the most deterrent to future rioters and give them maximum incentive to remain within the bounds of peaceful expression. It would also be the most just -- punish the real violent ones that put all the peaceful ones at risk of violence (because, ultimately, the 5-10% most violent protesters are the ones that bring about the most police violence).
9.2.2008 5:30pm
LM (mail):
neurodoc,

Yes, and one can get as much of that as they want listening to Ms. Goodman and her Pacifica confreres. Little to engage with there intellectually, it is so utterly mindless. Now when I fear my blood pressure may be dropping too low, I turn to the less lunatic, far more malignant left for stimulation, like Alec Cockburn, a true piece of work (but without the jazz accompaniment).

Really? Cockburn less lunatic? They strike me as about equally (and honestly) unhinged, an observation I'd also make about many who comment here mostly from the other side. The only significant difference I find is how venal Cockburn is. And did you mean to imply Cockburn can't be heard on Pacifica? If that's true, it wasn't always. I first heard him years ago, fairly regularly, on Pacifica's Counterpunch segments. (BTW, the LA affiliate is KPFK.)
9.2.2008 5:57pm
OrinKerr:
Dilan,

You seem unable or unwilling to distinguish two completely different concepts. The first is that arrests can in some circumstances violate the First Amendment. This is absolutely true. The second is that the First Amendment makes it unlawful to arrest someone who has committed an unlawful conspiracy to engage in a violent act designed to interfere with a third party's speech, on the ground that the government cannot interfere with such a conspiracy until the actual act has been committed. You are making the latter claim, and I am looking for cases on the latter; but every time I ask you for them, you pretend I am focused on the former and you express shock that I cannot recognize the former point.

What an remarkably frustrating interaction.
9.2.2008 6:03pm
Dilan Esper (mail) (www):
You seem unable or unwilling to distinguish two completely different concepts. The first is that arrests can in some circumstances violate the First Amendment. This is absolutely true. The second is that the First Amendment makes it unlawful to arrest someone who has committed an unlawful conspiracy to engage in a violent act designed to interfere with a third party's speech, on the ground that the government cannot interfere with such a conspiracy until the actual act has been committed. You are making the latter claim, and I am looking for cases on the latter; but every time I ask you for them, you pretend I am focused on the former and you express shock that I cannot recognize the former point.

Your second category needs to be split into two subcategories:

a. Arresting someone who has advocated violence as part of a political protest against an event put on by a political opponent.

AND

b. Arresting someone who has engaged in non-speech activities to further a conspiracy to commit violence against an event put on by a political opponent.

Simply labeling advocacy activities a "conspiracy to commit violence" does not create an exception to the First Amendment. If you have protesters buying bombs, you can arrest them. That's a conspiracy and it's not speech.

The question is whether if you have protesters saying the equivalent of "if you give me an M-16, the first person in my sights will be LBJ", whether you can arrest them. And the Supreme Court has on any number of occasions held that the latter is protected speech. Labeling it a "conspiracy" doesn't remove the First Amendment problem; it simply ignores it.
9.2.2008 6:27pm
Toby:
Dilan:

Thanks
9.2.2008 10:09pm
neurodoc:
LM, Amy Goodman couldn't put together a cogent argument if her life depended on it; Cockburn, whose father was a Communist organizer back in the UK and whose brother and sister-in-law are less prominent fellow travelers, is a hateful, but accomplished polemicist, no fool. The former means well, however misguided she may be; the latter means anything but well.
9.3.2008 12:27am
OrinKerr:
Dilan Esper,

Your legal analysis is way, way off. But to add a last comment, there's a big difference between punishing someonw for their speech, like the Watts case, and arresting someone for the destruction of property that is against a political opponent. Under your theory, it's a prior restraint to arrest an Al Qaeda cell that has not actually carried out its attack. But I can't find any caselaw to support that view. And despite my requests, you have offered none.
9.3.2008 12:39am
LM (mail):
neurodoc:

LM, Amy Goodman couldn't put together a cogent argument if her life depended on it; Cockburn, whose father was a Communist organizer back in the UK and whose brother and sister-in-law are less prominent fellow travelers, is a hateful, but accomplished polemicist, no fool.

If by "less lunatic" you meant "smarter and more persuasive," I agree.
9.3.2008 1:17am
TruthInAdvertising:
"I'd love to get your thoughts on my 1:18 am comment."

Late to respond but I did watch the Goodman video and I would say of the cases I read about, I have the least sympathy for hers. But she was not the only one arrested. At least three others, including her two producers, were arrested and initially charged with various rioting charges. I suppose its possible that employees of public radio and the AP photographer decided to put down their mics and cameras and join the riot. More likely, they were rounded up while they were covering the riots and arrested and charged with no distinction being made that they were journalists covering the event.

Goodman's producers were charged with felony riot charges. Wouldn't such an arrest and charge be based on some credible evidence that a serious crime had been committed? Seems odd that police would make such an arrest and then release these people without any attempt to formally charge them? Several other journalists were arrested in the same incident although it hasn't been as widely reported:

http://www.fortmilltimes.com/124/story/276807.html
9.3.2008 1:35am
Alcyoneus (mail):
I am not a lawyer. I'd like to see non-lethal weapons used on rioters. Perhaps some form of long-range taser, or a tranquilizer gun. They should be equipped with small video cameras to record the shot.

If an "anarchist" (really a leftist) decides to attack a bus full of elderly people, the cops tranq them and anyone who attempts to aid them afterwards. Then they simply arrest the incapacitated offenders with full video evidence. I don't know if such a thing is possible, but something like is probably is.

To the legal types here a question: can the governor declare martial law upon the appearance of the swarms of rioters and thereby allow lethal weapons to be used upon them? You know, in the spirit of "looters will be shot on sight."
9.3.2008 4:31am
TDPerkins (mail):

Simply labeling advocacy activities a "conspiracy to commit violence" does not create an exception to the First Amendment.


Calling joint activities to prepare for committing riot advocacy doesn't make them protected by the First Amendment.


The question is whether if you have protesters saying the equivalent of "if you give me an M-16, the first person in my sights will be LBJ", whether you can arrest them. And the Supreme Court has on any number of occasions held that the latter is protected speech. Labeling it a "conspiracy" doesn't remove the First Amendment problem; it simply ignores it.


The question is not whether talking about it makes it First Amendment protected behavior, since the people had the materials. It's whether actually giving the M-16 and taking it to a geographic point where the gun could be used is in fact conspiracy.

It is, and it isn't protected by the First Amendment.


For the record, I think that McCain-Feingold is unconstitutional.


At least we agree on something.

Yours, TDP, ml, msl, &pfpp
9.3.2008 7:38am
Dilan Esper (mail) (www):
Your legal analysis is way, way off. But to add a last comment, there's a big difference between punishing someonw for their speech, like the Watts case, and arresting someone for the destruction of property that is against a political opponent. Under your theory, it's a prior restraint to arrest an Al Qaeda cell that has not actually carried out its attack.

Where do you get this from? First, Al Qaeda falls on the conduct side of the conduct / speech divide, and the last time I checked, foreign terrorist groups can't claim First Amendment rights anyway. (Indeed, a case I was on the losing side of, the Humanitarian Law Project case, clearly held that.)

But second, even if we assumed some sort of First Amendment analysis, (1) the police would be in the clear as long as they could show some conduct that furthered the conspiracy (i.e., anything other than expressive activity), and (2) the police would be in the clear even with respect to expressive activity as long as they could meet the specific intent test of Brandenburg, which would be easy and straightforward to meet if you were dealing with Al Qaeda.

Bear in mind, Professor Kerr, I haven't even said that what has been going on in Minneapolis-St. Paul is a First Amendment violation; I have simply said that it raises First Amendment implications and you can't get around them simply by saying that someone's threats of violence are part of a "conspiracy to engage in violent and illegal acts". Rather, law enforcement has to meet established First Amendment tests before they start arresting protesters.
9.3.2008 4:47pm
Oren:


Calling joint activities to prepare for committing riot advocacy doesn't make them protected by the First Amendment.


Reading Eugene's post about crime-facilitating speech and the first amendment might disabuse you of that notion. . .
9.3.2008 4:52pm