The First Amendment right to assemble and protest is going to get a black eye in 2012—as it has every time there has been an upsurge in America’s social justice movements.
Already in city after city, protesters and civil rights lawyers are troubled by proposed and newly enacted anti-protest rules, many of which are likely to be found unconstitutional if they have their day in court. In the meantime mayors, police and in some cases federal agencies are making detailed plans to thwart protests at local and national events.
In many cities, ordinances aimed at Occupy protesters are emerging to restrict protests and anything resembling camping on sidewalks, streets and parks. New fees are being drawn up to discourage large demonstrations. Anti-leafleting and postering rules are also muzzling people trying to spread the word about events. And all of that is being shepherded with a new pretext for using paramilitary tactics, replacing last year’s "health and safety" excuse for sweeping away Occupy sites with the rationale of protecting "national security" in a presidential election year.
“It looks to me like the law enforcement preparations are similar to what we have seen at most of the political conventions or other major events over the last dozen years, which is paramilitary policing against a civilian population,” said Mara Verheyden-Hilliard, executive director of the Partnership for Civil Justice Fund and co-chair of the National Lawyers Guild Mass Defense Committee. “This tends to be different than the way Occupy actions have been handed for the most part, although one can point to Oakland or the New York Police Department [as exceptions]. But I would stress that it is not new.
Verheyden-Hilliard and her colleagues, including hundreds of volunteer attorneys across America who helped defend Occupy protests last fall, are not just continuing to litigate numerous instances of abusive policing—such as the trap-and-detain tactics used in mass roundups in New York, Oakland and the use of excessive force on university campuses. They are tracking the latest versions in a well-known policing playbook now being fine-tuned for 2012’s big events, such as Chicago’s NATO summit in May, the national political conventions in late summer, and the anticipated re-emergence of local Occupy protests when the weather warms.
“People do overcome,” Verheyden-Hilliard said. “But I think you have to have a fair and honest assessment of what the grounds are in front of you in order to be able to succeed. We think that people should know the hurdles they are facing. Yet at the same time, it is not all hand-wringing. There are a lot of people who go over the top and say fascism is here. Fascism is not here. We are still out in the streets.
“We still have democratic abilities to be out in the streets. It’s just that there are real problems that people are facing. People have to know what they are, but they can fight them and they can overcome them.”
What follows are the main pages from the anti-protest playbook being fine-tuned by municipal officials in advance of 2012 protests.
Tactic 1: Expanding Permit Requirements: Municipalities -- and not just Charlotte, South Carolina, where the Democratic National Convention will be held, and Tampa, Florida, where the Republican National Convention will be held -- are adopting local ordinances requiring protesters to apply for permits months or weeks in advance, even if they haven’t unveiled all of their rules for the events. That idea is not only to prevent spontaneous assembly, but also to create deterrents, leading to tactic two: charging protesters for exercising their rights.
Tactic 2: Charging Protesters for Municipal Costs: In supposedly liberal cities, such as San Francisco and Syracuse, New York, city halls have told protest groups they have to pay for the costs of (unwanted) police escorts and other fees to discourage marches. The fees—which can be challenged in court and thrown out if found to be selectively applied—are in Charlotte’s new rules for the Democratic Convention and include “hiring and paying off-duty law enforcement officers, or reimbursing the city for costs of providing on-duty law enforcement officers, to appropriately police street closures.” In Tampa, the new rules require protesters apply 60 days in advance for special permits and obtain insurance.
These fees are in addition to fines against groups if people put up their signs, posters or leaflet supporting their cause. New York City and Washington, DC, has versions of these anti-leafleting and poster rules. In Chattanooga, Tennessee, Public Citizen has sued over a new county rule forcing protesters to pay for its legal costs. “There’s hundreds of different rules about it,” Verheyden-Hilliard said, saying these fees were one of the “under the radar” trends and obstacles facing protesters in 2012.
Tactic 3: Demonizing Protesters In Pre-Event Press Conferences: The track record of police saying there are mounting public health emergencies was a central feature before Occupy evictions in New York’s Zuccotti Park, Oakland’s Oscar Grant Plaza, Washington’s McPherson Square and elsewhere. In Chicago, police officials looking ahead to May’s NATO summit have begun to invoke the 2012 corollary: security concerns, saying downtown businesses are anticipating riots with police saying that they do not know how many protesters will show up, “some of whom could become violent.” These smear tactics not only justify spending vast sums of public money on policing, but they also deter peaceful people from coming out to join the protest.
Tactic 4: Creating Exclusion Zones and Segregating Protesters: There have been many court rulings asserting the First Amendment right of assembly in the street and on sidewalks. However, that has not stopped a range of municipalities and even state legislatures from eyeing or passing laws that range from making protesting in the street in front of a private home illegal—such as legislation passed by the Georgia Senate last week or Charlotte’s new protest rules—or that bar camping on city property. Charlotte’s anti-camping provisions were used to shut down the city’s Occupy protest.
The sidewalk and camping restrictions are part of a trend of declaring larger areas of cities off-limits to protesters. In Washington, DC, which has some of the most protest-friendly rules in the nation (after repeatedly being sued and losing in federal court), the city is eyeing a proposal to extend sidewalk restrictions to all parkland—targeting future Occupy encampments. This trend continues with more sweeping measures like declaring a large swath of a city a special security zone, such as at the NATO summit and during the national political conventions, where paramilitary forces will be deployed.
Some restrictions are reasonable, such as the U.S. Coast Guard closing and patrolling the Lake Michigan shore and Chicago River during the NATO summit. But others, such as Charlotte’s new rules, impose broad and likely unconstitutional restrictions. These start with banning any object or activity that blocks roads, outlaws crossing police lines, bars possessing anything the police say can conceal a weapon or person’s identity (backpacks and scarves), limits the hanging of banners on private property without permission from property owners, and makes it illegal to use police scanners inside the security perimeter (but does not stop police from spying on protesters, including using helicopters).
The national political conventions each receive $50 million for security from the federal government. In Tampa, Florida, where the Republican Convention will be held in late August, the downtown will be sealed off from public access, roads closed, and the city will spend $30 million hiring 4,000 additional law enforcement personnel, local papers report. Tampa police already have spent nearly $300,000 on an armored SWAT vehicle and $1.18 million on “video linkages” between ground police and helicopters, the news reports say. Tampa Mayor Bob Buckhorn also has been hostile to would-be protesters, telling local papers, “Just because they want to occupy something doesn’t mean we are obligated to provide them with an opportunity to camp out in a public park or on a sidewalk.” He has all but rejected the Florida ACLU’s efforts to negotiate.
In Charlotte, the police won’t “talk about $25 million in new equipment for the DNC,” the Charlotte Observer reported in a January article that talked about how the technology and equipment will affect how local policing is conducted for years. The ordinance upgrades in Charlotte and Tampa do not expire after the conventions. Civil libertarians expect both events to be highly militarized with protesters treated poorly.
“Exclusion zones are appalling,” Verheyden-Hilliard said. “We completely oppose and do not negotiate for any type of pens or pits in which people can stand. Our view is that people have the right to be on the streets and sidewalks and it is not a compromisable right. But that is definitely what you are going to see this year.”
Tactic 5: Mass Arrests, Punitive Detention: As many Occupy protesters learned last fall, the police have the bullhorns, handcuffs, pepper spray, waiting vans and jail cells at their disposal if they want to conduct sweeps, and use trap and detain tactics. Perhaps the best-known example was the mass arrest on the Brooklyn Bridge—which is being litigated to possibly impose rules on New York police to prevent similar arrests and to clear the records of those arrested. However, it is an unfortunate reality that despite all the constitutional protections and subsequent court victories, including collecting damages, the police can and do overpower protesters.
Perhaps the best warning to protesters of impending police overreach can be found in the rules that Washington, DC was forced to adopt in 2005, after it lost a series of suits and a sympathetic city council wanted to restrict police excesses. Washington’s revised standards include: restrictions on using police lines, restrictions on ordering an crowd to disperse or to end an event; a ban on arresting someone who is parading without a permit. It requires that protesters be given time to comply with an order; restricts the use of riot gear; limits the period of arrest and detention; restricts the use of pepper spray; prohibits inhumane use of handcuffs or physical restraints; requires food and water be given to anyone arrested; requires those arrested be given a statement on how to obtain a quick release; requires detailed arrest records be kept; and requires police to display badges.
Even with these standards in law—which are a list of tell-tale signs of police excesses—Washington city officials this week are eyeing legislation to ban "crowding" in city parks, and an attorney representing the police department was chastised by a federal judge this week for knowingly submitting false affidavits in an ongoing lawsuit over past protests.
Hope Not Fear
Despite these obstacles, civil rights lawyers are already looking at ways to defend First Amendment rights at 2012’s largest events: the NATO summit and political conventions. Also, there is a large cadre of lawyers across the country who gained experience during last fall’s Occupy protests and can be deployed quickly as events spiral.
“Nationally, what we were able to accomplish this past fall in terms of legal support was unprecedented,” Verheyden-Hilliard said. “I am the co-chair of National Lawyers Guild mass defense committee, and as Occupy actions sprung up all over the country, we were able to pull together hundreds of volunteer attorneys, law students and legal workers in cities and towns throughout the U.S. without notice.”
But looking toward the national political conventions, the hurdles are more formidable, she said, because the police and various federal agencies are not discussing their plans.
“We are working with legal teams in Tampa and Charlotte who are looking at ordinance challenges, permitting issues, etc.,” Verheyden-Hilliard said. “As it unfolds I would expect there to be legal challenges, but part of the initial hurdle is trying to pin down from law enforcement what the restrictions are going to be. One of the tactics that the government uses is to try to wind down the clock and not provide information on restrictions until the last minute so that you are only able to go to court on a short time-frame and without opportunity to develop a record to overcome the pretextual and untested security claims that will be presented to the judge. The fact is they know well in advance what they are planning to do.”
There are other major factors the police cannot control, however. The first is the number of people who will protest—whether it is in local Occupy protests or national political events. When enough people take to the streets, police cannot arrest everyone. Nor can they control the media from covering police overreach and excessive force. Together those factors can change the political climate and force governments at the local, state and national level to adopt reforms—not because legislators are feeling benevolent, but because they are worried about what is happening in the streets.