“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
The First Amendment of the United States Constitution is clear in its direction that the right to peaceful assembly is not to be infringed. Supreme Court decisions have upheld and elaborated on such rights, with displays of offensive messages (Cohen v. California) and flag burnings (Texas v. Johnson) established as protected forms of speech. Article 20 of the Universal Declaration of Human Rights, although not legally binding like the First Amendment, guarantees everyone’s right to peacefully assemble. Therefore, images of police officers in Charleston, North Carolina, arresting peaceful protestor Givionne Jordan, as well as countless other images across the country, highlight one specific conclusion — public order policing in the US has violated the rights of its citizens.
American public order policing methods are outdated, brash, and ineffective. Regardless of whether protestors became the “angry mob” described by President Donald Trump, it is clear that policing of the protests was not as effective as it could have been on several levels. Why? Because the Metropolitan Police Service, as we speak, is doing a much better job of policing protests over the murder of George Floyd. They have done so by setting the tone, keeping things calm, arresting only when necessary, following clear legislative restrictions, and using a clear command and control structure.
Setting the tone
The first thing the Metropolitan Police (colloquially known as the Met) succeeded with was setting the tone. The College of Policing (the body responsible for setting the standards for policing in England and Wales) has established guidelines for public order policing. These guidelines state that commanders, first and foremost, must set the tone, bearing in mind public perception; the likelihood for disorder; and the effect any escalation in tone might have. Officers policing the London Black Lives Matter (BLM) protest initially wore standard patrol uniform — shirts, ties, basic stab vests, and flat-peaked caps (or custodian helmets) — as pictured below. Even when levels of disorder escalated, extra protective gear was worn discreetly under jackets and high-visibility vests. What this tone communicated to protestors was that, “We [the police] presume you will not require us to need more protection than normal to keep ourselves safe” and “We do not see you as inherently dangerous”.
Such messaging is important as it shows respect for the protestors and treats them as adults; as individuals trusted not to break the law; and as innocent unless proven guilty. Such messaging, especially when the protests centre around inherent biases police officers may have towards Black Asian and Minority Ethnic (BAME) individuals, is critical. Images of regiments of officers in heavy protective gear, including baton rounds and tear gas, lined up against young black men and women alternatively show that the police fully expect these protestors to become violent, creating what is often a self-fulfilling prophecy in the process. A lesson British police learned from the 2011 London riots, which American police forces are hopefully currently learning, is that overt riot gear does not intimidate disorder, rather it provokes it.
The College of Police guidelines stress the need to consider all protests peaceful unless there is evidence otherwise. It is clear this was not the case with many American police forces.
Standard Metropolitan Police Uniform
© Octagon / Wikimedia Commons
Keeping things calm
Engagement, dialogue, and de-escalation are key methods in public order policing to defuse tensions and ensure that protests proceed in a non-violent manner. When police officers speak with protestors, kneel with them, and show solidarity with their cause, they effectively humanise themselves and mediate tensions. A great many police forces have failed to take such steps, however, as evidenced by a video of Dallas police officers using tear gas as a primary dispersal tactic, forsaking engagement and dialogue and, as a result, heightening tensions.
Escalation and the use of force should only be considered where other means are incapable of achieving a lawful objective, according to the College of Policing. Met officers, despite facing small skirmishes of violence, did not escalate their response to the protests. Words, not tear gas, are first and foremost deployed if British police need people to remain in place or move along, as can be seen in a documentary following the policing of British football fans. Even during the most serious cases of disorder, where bottles and fireworks were thrown at police lines and Downing Street, the response was not to charge the crowd but rather to move it along with the Met’s Mounted Branch (the unit which utilises police horses). This response, as opposed to dramatically escalating force by using tear gas and baton rounds as seen in the US, means that demonstrations with six-figure attendances saw minimal incidents of marginally serious disorder.
Such responses protect an individual’s right to protest, their right to speak their mind, and their right to not be a victim of excessive force. Additionally, videos emerging of horrific police violence, which can only be described as unnecessary brutality, can never be justified as proportionate or lawful. It has become clear that, in the absence of sufficient accountability, some officers see fit to give themselves free rein over the use of violence.
Arresting only when absolutely necessary
The Al-Jazeera news agency reports that, at the time of writing, over 9,300 people have been arrested in the wake of the protests in the US. That is in excess of a thousand per day. Arrests are not made in a vacuum. Regardless of whether an arrest is justified (and many, such as the arrest of CNN reporters live on air, are not), they heighten tensions, require the use of force, and can provoke crowd intervention. As such, arrests come at a risk.
Good public order policing critically evaluates whether the benefit of a public arrest outweighs the risk of disorder it will cause. It is clear such evaluations either have not taken place in US cases or have been horrendously miscalculated. In addition to the incident with CNN reporters cited above, there have been numerous other such cases. For example, six officers from Atlanta, who have now been fired and arrested, used tasers while apprehending two students driving home from protests. It is clear that public order policing in America by-and-large has not reserved arrest for the most serious of disorders, as the Metropolitan Police have done.
In examining the Met’s response to the BLM protest, it is worth noting that COVID-19 legislation gives the police the legal power to disperse the protests. Much like those arrested in America simply for breaking curfews, London’s protestors are in breach of public health guidelines, and thus the law, simply by gathering. However, by applying an “appropriate policing plan”, and refraining from arresting en masse, the Met have largely succeeded in ensuring they do not cause additional unrest. This much was admitted by Dame Cressida Dick, Commissioner of the Metropolitan Police, to the London Assembly. Complying with the theme of the College of Police’s guidelines, arresting should not be done for the sake of doing so, but rather as part of a wider aim to prevent and contain disorder. If an arrest provokes the very disorder it seeks to prevent, then it should not be done.
Black Lives Matter protest in Des Moines, Iowa
© Phil Roeder / Flickr
Restrictions on police actions enshrined in legislation
By forcefully removing the peaceful protests outside the White House, the federal government’s actions amounted to, amongst other things, a denial of the right of the people to assemble. This can easily be seen as a violation of the First Amendment which protects this right. However, the US lacks comprehensive legislation providing a clear negative duty to law enforcement officers to not disperse assembly without large-scale disorder. As such, the only recourse to prove said action was unconstitutional is by appealing to the federal judiciary. The federal judiciary is notable for, in many cases, being extraordinarily slow and frustrating to gain redress. Thus, the First Amendment is extremely vague and open to abuse and violation by law enforcement.
In contrast, the United Kingdom’s highly comprehensive Public Order Act 1986 covers everything from legislating against threats and provocation of violence (Section 4) to governing assemblies and the law enforcement’s powers to affect public order policing strategies.
This piece of legislation provides a clear negative duty for police services not to interfere with processions and assemblies as long as they have no reason to believe such a gathering would cause serious disorder. If a police chief thinks this would be the case, their power is limited in Section 12(1) and Section 13(1) to simply modify the routes of processions or delay them for no longer than three months respectively. Section 14(1) allows police chiefs to impose conditions on assemblies, such as where they are able to go, but not disperse them entirely on a whim as was done outside the White House. The Public Order Act, as the High Court ruled in 2019, only gives the police the right to manage protests, not to outright disperse them. This explains why, although the BLM gatherings in London were unlawful, according to Dame Cressida Dick, the police did not disperse them.
Clear command and control structure
Two cases of US public order policing in particular exhibit incredibly poor command and control of frontline officers. The first of which was the recent horrifying case in Buffalo, New York, where an advancing line of supposedly well-trained Emergency Response Team officers pushed back a non-aggressive elderly gentleman with the same force they would an aggressive six-foot male, 50 years his junior. It led the gentleman to fall backwards and hit his head, causing him to lose consciousness and blood. Strikingly, the video shows no obvious superior officer present; no immediate care from the frontline officers (who rather continue advancing after the incident); and no obvious or immediate communication of the incident. The questions the video raises are numerous. Why did the advance not halt immediately to assess the situation? Why is the one officer who moves to assess the gentleman moved away by another before continuing to advance? Why were there no public order medic officers, who should be nearby to provide immediate assistance if paramedics and ambulances are unable to reach an individual? Why was there an absence of a clear supervisor who could inform senior officers of the situation?
Likewise, an incident in Dallas where tear gas was used as a primary dispersal tactic shows several flaws with command and control. The officer firing the tear gas appears out of step with his section. The section appears blasé in stance during this large escalation of force, with some officers potentially continuing to verbally engage with the protestors. This video similarly raises numerous questions: Why was there no obvious supervisor directing the escalation? Why was there no apparent communication on the ground to senior officers about the effects of the escalation to control the situation? Why, like in countless other examples, were there no police medics present to assist with any serious injuries and/or reactions to the tear gas?
Ultimately, these questions and videos show that even supposedly well-trained public order officers in the US do not have effectively organised command and control structures. When force is escalated, which is done so regularly and disproportionately, it is largely left up to the discretion of the officers on the ground, rather than under the direct control of supervisors and senior officers. Orders from above are often vague, and without enough depth to ensure they are carried out proportionately.
More worrying is the lack of communication as this means it is unlikely such orders will be modified or belayed if events on the ground make carrying out such orders unsafe, disproportionate, or unlawful. For example, in defending the officers in the Buffalo case, the Police Union argued the officers were “simply following orders from the Deputy Police Commissioner to disperse protestors from the square”. It is clear the aforementioned senior officer was not in sufficient control to modify his orders in response to such a development. His orders did not specify the level of force to be used in clearing the square. While this is no defence for the officers involved, as simple common sense tells an officer not to shove anyone so hard he is hospitalised, it exemplifies the lack of control senior officers have been shown to have; an extraordinarily dangerous element in an already volatile situation.
Similarly, the lack of accountability and control at all ranks has contributed to a sense that officers can act in a public order environment with impunity. They can arrest unnecessarily with impunity, use force with impunity, and escalate with impunity. This is a clear and persistent failure with the command structure of American public order policing.
In comparison, the College of Policing prescribes a clear and coherent command and control structure in every public order operation carried out in the UK. The Gold Commander (usually a Chief Superintendent or an individual of a higher rank) lays out the overall strategic plan, goals, and aims of the operation. These objectives are then carried out by the Silver and Bronze commanders, whose responsibility it is to plan and implement tactical accompaniments to the Gold Commander’s strategy, as well as oversee the officers in their units. Bronze commanders and sub-Bronze commanders (of a supervisor rank such as Sergeant, Inspector, or Chief Inspector) will almost always be on the ground. They will relay information such as the atmosphere; the need to escalate responses; where resources are required; necessary arrests to be made; and more. These will then be overseen by the Silver and Gold commanders and modified if necessary to ensure the response remains proportionate and lawful. What is particularly important is that, as well as individual officers, Gold and Silver commanders are personally accountable for the conduct of officers involved in their operation. They must provide a clear audit trail of decision-making that is in-line with the true events of the day.
To exemplify this, consider the accompanying image of this article. The escalation of force to arrest the individuals assaulting the police officer is supervised and accompanied by an officer with three pips on his epaulette. He is a Chief Inspector, a senior officer who will have relayed information about the escalation to officers even more senior than himself. These senior officers would have received details such as the scale and severity of the disorder; the number of individuals involved; and suggestions for appropriate responses. Relatively little is left to assumptions, ensuring that protests do not lead to a large-scale escalation of force as seen with some minor disorders in the US. This event alone showcases more coordination and control than the vast majority of American public order policing. It is something that, put plainly, a lot of police forces could learn from.
The US has demonstrated that it suffers from wide-ranging deficiencies in proportionate and effective public order policing. For a number of reasons, most significantly, the lack of a national policing standard, there are numerous examples where antiquated methods have been employed to police protests. Peaceful protestors are met with tear gas and baton rounds; seriously injured individuals fail to receive timely medical assistance; and mass arrests showcase to all the very worst failings of police restraint, accountability, and attitude. In their often brutal response to protests, both peaceful and otherwise, American officers surrender the moral high ground and display behaviour contrary to the values of justice they purport to hold. The US police officers who have caused a disproportionate escalation of force have violated a fundamental right constitutionally enshrined for over 200 years — the right to peaceful assembly.
Moreover, the harshness and lack of restraint which continues to characterise certain policing operations has not resulted in more effective policing or less disorder. By viewing the alternate example of British policing of protests with similar emotions; tensions; number of participants; reasonings; initial likelihood of disorder; legality; and so on, it is clear that policing the protests with dignity, accountability, and restraint ultimately facilitates protests. The British response was far from perfect, with an unacceptably high number of officers injured. Ultimately, however, the response of British police services serve as an example for US public order policing to follow in the future.
The St Andrews Law Review aims to support education and raise awareness about racial injustices. To learn more and get involved, please find a list of relevant links here.