Credit: thomathzac23 // Adobe
When curfew hit at 8 p.m. on April 13 in Brooklyn Center, Minnesota, it felt like someone had flipped a switch.
Reporters on the ground say the protest outside the police department had been peaceful, full of speeches and songs.
But the environment quickly changed as law enforcement began to use more aggressive tactics, firing less-lethal rounds, tear gas and flash grenades at protesters in an attempt to disperse the protest.
Minnesota Governor Tim Walz had earlier declared a peacetime emergency in seven counties. He characterized his response in a press conference as the "largest police presence in Minnesota history."
It has been criticized by residents, though, who say it feels like a military occupation. Brooklyn Center residents living near the protest site were even gassed in their homes.
It follows a familiar formula to many racial justice protests in recent history. A state of emergency is called. A curfew is instated. And the folks who continue to exercise their right to protest are met with violence and a large, militarized police presence.
We saw this during 2014 protests in Ferguson, Missouri, after the police killing of Michael Brown. We saw it in 2016 during protests at the site of the Dakota Access Pipeline. And we saw it last summer in Minneapolis during protests after the police killing of George Floyd.
An aggressive police presence doesn't have to start with a state of emergency and local curfew.
Emergency powers don't, on their own, denote abuse.
But the way they're enacted can vary drastically based on the assessment of the threat at hand. Often, emergency powers and curfews are enacted in a way that paves the way for, if not endorses, police brutality at protests.
"Studies tell us that police are more likely to view activists of color and left-leaning activists as being threatening and as being dangerous," said Karen Pita Loor, the associate dean for experiential education and clinical associate professor of law at the Boston University School of Law.
When a state of emergency is in place, the enactor, whether that's the governor or mayor, becomes the commander-in-chief, in a sense. They decide how to carry out the powers.
"Police have this incredible discretion and a lot of tools and a lot of manpower and weaponry to respond in a very aggressive way," Loor said.
"They are the ones that are providing the governor with information about what the threat is and whether a state of emergency is warranted. And how that state of emergency should proceed."
Emergency powers have roots not in protest management, but for times like natural disasters and war.
The emergency power laws we're seeing enacted during these protests are the same ones we see in use during the COVID-19 pandemic, snowstorms and floods.
"We've had emergency powers for as long as we've had constitutions, i.e., for thousands of years," said Nomi Claire Lazar, associate professor in the Graduate School of Public and International Affairs at the University of Ottawa and author of States of Emergency in Liberal Democracies.
"Constitutions are ways of dividing up political powers on one hand and immunities against those powers on the other hand."
But in an emergency, the day-to-day checks and balances that come with a constitution can slow down response and even further disaster.
Emergency powers, then, provide built-in flexibility to respond however is necessary.
"These allow a state to concentrate power and derogate rights in urgent situations which threaten the public on a large scale," Lazar said.
"One way to think about this is that in an emergency, the state can't fulfill its usual public duties without our help (we help by staying home to prevent disease spread, we help by sandbagging in a flood, we help by lending a factory for munitions manufacture), and emergency powers allow the state to command our help."
Emergency powers do not suspend the constitution. While most state statutes don't have any sort of provision preserving individual rights during an emergency, we still have the same rights during a state of emergency that we do on a typical day.
By the Fourth Amendment, we should still be protected against unreasonable search and seizure.
But the checks to make sure this happens don't always hold up. In 1989, Supreme Court case Graham v. Connor defined an "objective reasonableness" standard for law enforcement conduct, which points out that police are forced to make split-second judgements.
The standard has been cited in multiple police killings since, such as the shootings of Michael Brown, Jamar Clark and Philando Castile. It makes it difficult to hold police accountable in excessive force cases through the Fourth Amendment.
Often, lawsuits claiming police unlawfully arrested protesters are dismissed because of qualified immunity, which protects officers from lawsuits except in cases of incompetence. Officers are protected because they can say they suspected criminal activity.
"Basically, what the courts are doing is they're ignoring the fact that the underlying conduct that the victim of the police violence is engaging in is expressive political activity," Loor said.
"The underlying conduct is not that they're criminal suspects. The underlying conduct is that they're actually protestors, which we are supposed to value as a society and also supposed to protect."
Loor believes courts should be recognizing the expressive portion of the Fourth Amendment which has been applied to searches of books and papers when it comes to protest activity.
This month Walz, the Minnesota governor, deployed 3,000 National Guard troops on the ground in the metro area as part of his public safety initiative, Operation Safety Net. That's in addition to 1,000 law enforcement officers and state patrol.
But there doesn't need to be a state of emergency for police to respond to protests in huge numbers. Mutual aid agreements between police departments already make that possible.
And while curfews make it easier for police to arrest protesters, they already have arrest tactics at their disposal that allow them to arrest protesters for nonviolent conduct, including mass arrests for failure to disperse. Even journalists have been arrested simply for possessing gas masks to protect themselves from tear gas.
These arrests often aren't prosecuted. But they can be violent.
There has been concern over military use of force at protests since at least the Kent State massacre in 1970, when soldiers shot and killed four students and wounded nine during an anti-war protest.
After the shootings, National Guard forces moved toward less-lethal weapons like rubber bullets, which are still in use today. But despite being labeled "less lethal," rubber bullets can still seriously injure, even kill protesters.
In 1878, The Posse Comitatus Act was passed to prevent the federal military from engaging in law enforcement activity. There was a desire for the military and law enforcement to be separate entities.
"They're supposed to keep the peace, prevent disturbances, quell disorder, but not enforce the law. That's for the cops," said William Banks, professor emeritus at the Syracuse University College of Law.
But states aren't burdened by that restriction.
"If the governor wishes, depending on how the state law is written, National Guard forces could enforce the curfew or engage in a search or make an arrest of an individual who's violating the law," Banks said.
In the past 20 years, the lines have further blurred. That's because military-grade force doesn't just come from the military.
Since 1997, federal programs have transferred surplus military equipment to local police departments. Police departments often respond to protests in full tactical military gear, with gas masks, shields and armored vehicles.
For instance, as NPR reported, St. Paul suburb Cottage Grove's police department alone acquired $1 million in military gear during the Trump administration. The department received 39 bayonets in December 2019.
"That kind of a force, particularly if it's made distant from the people by virtue of the equipment that they use and the paraphernalia that they wear, and the rules of engagement that follow, they're no longer being responsive to the people," Banks said.
"It's about accountability and transparency."
Public officials never have all the information during a fast-moving situation. But they have an incentive to overreact, to appear as if they are maintaining order and safety.
"Especially in cases where it's 'our' safety and 'their' rights, where the benefits accrue to the majority and the costs fall on a minority, there is a strong incentive for political leaders to overreact so that they are 'seen' to be taking the matter in hand," Lazar said.
Some states, like Minnesota, have sunset clauses which require governors to renew their emergency power monthly. This provides some accountability.
"It's imperative that we never stop talking about the ethics behind emergency powers, never stop questioning, judging and rejudging emergency action," Lazar said.
"That much more so because at such moments, citizens become doubly vulnerable, both because of the emergency itself and because of (rights derogating) mechanisms for addressing it."
Loor and Lazar said it's important to differentiate between emergencies like a flood or pandemic, and a popular uprising against discrimination.
"Really, we have people's civil rights at stake," Loor said.
Go here to see the original:
How Emergency Powers Pave the Way for Police Brutality at Protests - Rewire.org
- Why Congress Must Reform FISA Section 702and How It Can - brennancenter.org - April 12th, 2024 [April 12th, 2024]
- CIA wants more power to spy on Americans - Washington Times - April 12th, 2024 [April 12th, 2024]
- Keyboard search warrants and the Fourth Amendment | Brookings - Brookings Institution - February 22nd, 2024 [February 22nd, 2024]
- Just Published: "Terms of Service and Fourth Amendment Rights" - Reason - February 22nd, 2024 [February 22nd, 2024]
- Can Texas police set up DWI checkpoints in Dallas-Fort Worth? Here's what to know - Yahoo News Canada - February 16th, 2024 [February 16th, 2024]
- The FBI's Lawless Raid on U.S. Private Vaults Shows Why the Founders Created the Fourth Amendment | Jon Miltimore - Foundation for Economic Education - February 16th, 2024 [February 16th, 2024]
- HCSO to release body cam footage to plaintiff alleging Fourth Amendment violation - Smoky Mountain News - December 19th, 2023 [December 19th, 2023]
- Section 702 surveillance doesn't belong in the NDAA - Defense One - December 16th, 2023 [December 16th, 2023]
- Valkyrie's Fourth Amendment for the Launch of a Bitcoin ETF - Crypto Times - December 16th, 2023 [December 16th, 2023]
- Digital justice: Supreme Court increasingly confronts law and the internet - Washington Times - December 14th, 2023 [December 14th, 2023]
- Trump and Section 3 of the Fourteenth Amendment: An Exploration ... - JURIST - October 13th, 2023 [October 13th, 2023]
- Expert Q&A with David Aaron on FISA Section 702 Reauthorization ... - Just Security - October 13th, 2023 [October 13th, 2023]
- A Constitution the Government Evades - Tenth Amendment Center - October 13th, 2023 [October 13th, 2023]
- First and Fourth Amendment Claims Over Arrest at Protest of Police ... - Reason - September 25th, 2023 [September 25th, 2023]
- Law enforcement violation of the fourth amendment - Daily Kos - September 25th, 2023 [September 25th, 2023]
- D.C. Appeals Court weighs whether phone seizures from 2020 ... - Washington Times - September 25th, 2023 [September 25th, 2023]
- Opinion: Why you shouldn't turn on your phone in church Palo Alto ... - The Daily Post - September 25th, 2023 [September 25th, 2023]
- Court attorneys group hosts CLE seminar with esteemed Justice ... - Brooklyn Daily Eagle - September 25th, 2023 [September 25th, 2023]
- Former Dona Ana County Deputy Sheriff Charged with Federal Civil ... - Department of Justice - September 25th, 2023 [September 25th, 2023]
- Editorial: Renters rights ruling | Opinion - nwestiowa.com - September 25th, 2023 [September 25th, 2023]
- U.S. Attorney's Statement Regarding Proposed Changes to Crime ... - Department of Justice - September 25th, 2023 [September 25th, 2023]
- New Jersey provides a road map for fighting racially biased traffic ... - Slate - September 25th, 2023 [September 25th, 2023]
- Animal rights advocates sue after facing ongoing censorship and ... - Foundation for Individual Rights in Education - September 25th, 2023 [September 25th, 2023]
- Gerald Jako Pleads Guilty to Two Counts of Murder in Ohio County - Wheeling Intelligencer - September 25th, 2023 [September 25th, 2023]
- Supreme Court of Appeals Visits Campus The Parthenon - MU The Parthenon - September 25th, 2023 [September 25th, 2023]
- Securities and Exchange Board of India (Listing Obligations and ... - Tax Management India. Com - September 25th, 2023 [September 25th, 2023]
- Legal Strategies For A Strong Defense Against Bribery Accusations - American Judicature Society - September 25th, 2023 [September 25th, 2023]
- Police get new images of area break-in suspect - Southwest Virginia Today - September 15th, 2023 [September 15th, 2023]
- Napolitano: Is the CIA in your underwear? | News, Sports, Jobs - Standard-Examiner - September 15th, 2023 [September 15th, 2023]
- Bulletin: Maryland Juvenile Services Head Says Violence Among ... - The Trace - September 15th, 2023 [September 15th, 2023]
- Tased horseman's excessive force claims clear bar Rhode Island ... - Rhode Island Lawyers Weekly - September 15th, 2023 [September 15th, 2023]
- The absurdity of fact-checkers | Columnists | leader-call.com - leader-call.com - September 15th, 2023 [September 15th, 2023]
- Facial Recognition Technology and False Arrests: Should Black ... - Capital B - September 15th, 2023 [September 15th, 2023]
- Letter to the editor - Southeast Iowa Union - September 15th, 2023 [September 15th, 2023]
- Petition hopes to stop US government agencies from using ... - Cointelegraph - September 15th, 2023 [September 15th, 2023]
- Passing on the legacy of 9/11 to the next generation The ... - The Duquesne Duke - September 15th, 2023 [September 15th, 2023]
- Congress Should Reauthorize a Key Intelligence Tool - Foreign Policy Research Institute - September 5th, 2023 [September 5th, 2023]
- Kansas City police made arrests based on rescinded warrants ... - Kansas Reflector - September 5th, 2023 [September 5th, 2023]
- Tased horsemans excessive force claims clear bar - Virginia Lawyers Weekly - September 5th, 2023 [September 5th, 2023]
- Ball is in AL's court - newagebd.net - September 5th, 2023 [September 5th, 2023]
- Lawsuit against police chief just the latest shoe to drop in Marion ... - Kansas Reflector - September 5th, 2023 [September 5th, 2023]
- In the wake of Idalia, residents of one Florida town are turning to ... - Poynter - September 5th, 2023 [September 5th, 2023]
- NYPD using drones to monitor NYC backyard Labor Day parties, spurring privacy concerns - NBC New York - September 5th, 2023 [September 5th, 2023]
- City of Grand Rapids dismissed, lawsuit against Christopher Schurr ... - FOX 17 West Michigan News - September 5th, 2023 [September 5th, 2023]
- OSHA's Proposed Rule Would Allow Union Walkthroughs of All ... - Fisher Phillips - September 5th, 2023 [September 5th, 2023]
- Letters From Readers, Aug. 31, 2023 | Opinion | avpress.com - Antelope Valley Press - September 5th, 2023 [September 5th, 2023]
- Where are the Noah's Park animals? - The Pike County Courier - September 5th, 2023 [September 5th, 2023]
- His hands were up: Attorney for football game shooting victim says civil rights violated - Yahoo News - September 5th, 2023 [September 5th, 2023]
- NYC voters explain why theyre voting for RFK Jr. over Biden: Going ... - 1330 WFIN - September 5th, 2023 [September 5th, 2023]
- Houston Food Not Bombs in Court over Feeding the Unhoused - The Texas Observer - September 5th, 2023 [September 5th, 2023]
- Search and seizure Equal protection Discriminatory policing - Massachusetts Lawyers Weekly - May 18th, 2023 [May 18th, 2023]
- The Timing of Computer Search Warrants When It Takes the ... - Reason - May 18th, 2023 [May 18th, 2023]
- Councilmembers Inquired About Pretext Stops By Police One Year ... - Pasadena Now - May 18th, 2023 [May 18th, 2023]
- BARINGS BDC, INC. : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet... - May 18th, 2023 [May 18th, 2023]
- Alabama appeals court reverses murder conviction of Ala. officer ... - Police News - May 18th, 2023 [May 18th, 2023]
- Oakland narrows town manager search to five | West Orange Times ... - West Orange Times & SouthWest Orange Observer - May 18th, 2023 [May 18th, 2023]
- The Durham Report Is Right About the Need for More FBI Oversight - Reason - May 18th, 2023 [May 18th, 2023]
- Collective knowledge doctrine applies to a traffic stop - Police News - May 18th, 2023 [May 18th, 2023]
- Interpretation: The Fourth Amendment | Constitution Center - March 31st, 2023 [March 31st, 2023]
- Public Schools :: Fourth Amendment -- Search and Seizure :: US ... - January 2nd, 2023 [January 2nd, 2023]
- BSE : Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) (Fourth Amendment) Regulations, 2022 - Marketscreener.com - November 27th, 2022 [November 27th, 2022]
- Trump legal counsel vows 'Fourth Amendment based' challenge to Mar-a ... - October 21st, 2022 [October 21st, 2022]
- Get to Know the EFA: Digital Fourth - EFF - October 13th, 2022 [October 13th, 2022]
- Arguments heard in body in trunk case | News, Sports, Jobs - Minot Daily News - October 13th, 2022 [October 13th, 2022]
- Ormond Beach Planning Board to meet Thursday - Ormond Beach Observer - October 13th, 2022 [October 13th, 2022]
- Limiting the Power of Police in Schools - The Regulatory Review - October 13th, 2022 [October 13th, 2022]
- Letter to the Editor: What Republicans Believe - Door County Pulse - October 13th, 2022 [October 13th, 2022]
- Trump wants other presidents investigated - KRLD - October 13th, 2022 [October 13th, 2022]
- Trump Rally Speech Shows He's 'Guilty and Scared': Former Prosecutor - Newsweek - October 13th, 2022 [October 13th, 2022]
- Court Strips Immunity From Cop Who Shot A Dog Within Seconds Of Arriving On The Scene Of A Non-Crime - Techdirt - October 6th, 2022 [October 6th, 2022]
- Claiming to have 4.3 trillion readers, the Onion supports parodist and its writers' paychecks in SCOTUS brief - ABA Journal - October 6th, 2022 [October 6th, 2022]
- INHIBRX, INC. : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet... - October 6th, 2022 [October 6th, 2022]
- PennLive goes to court for records related to U.S. Rep. Scott Perrys cell phone - PennLive - October 6th, 2022 [October 6th, 2022]
- Rusty Hardin & Associates Strengthens Litigation Team with Addition of Attorney Aisha Dennis - PR Newswire - October 6th, 2022 [October 6th, 2022]
- Vancouver City Council asked to OK $725000 deal with family of man killed by police - The Columbian - October 6th, 2022 [October 6th, 2022]
- Govt plans to auction 22 mineral blocks in 3 states within next two months - Business Standard - October 6th, 2022 [October 6th, 2022]
- Fort Worth officers sued after being accused of violating rights - WFAA.com - September 27th, 2022 [September 27th, 2022]
- LSU professors, students weigh in on constitutionality of room scans for online exams - The Reveille, LSU's student newspaper - September 27th, 2022 [September 27th, 2022]
- Solution for ideological division: Revising the Constitution? - The Christian Science Monitor - September 27th, 2022 [September 27th, 2022]
- Lawsuit says teen was thrown in solitary confinement and abused inside Maine's youth prisons - observer-me.com - September 27th, 2022 [September 27th, 2022]