Legal Implications on the Use of Force During a Demonstration LEGAL OFFICERS SECTION IACP Mark H. Newbold Deputy City Attorney – Police Charlotte-Mecklenburg Police Department

THE PROBLEM Competing Constitutional Values

THE PROBLEM

POLICE RESPONSE

THE RESULT

THE HEADLINE Boston Police to Use a Weaker Pepper-Ball Gun Boston Police to Use a Weaker Pepper-Ball Gun Officials Will Switch Crowd-Control Weapon Until Probe of Red Sox Fan's Death Ends Officials Will Switch Crowd-Control Weapon Until Probe of Red Sox Fan's Death Ends

THE HEADLINE Former U.S. Attorney to Probe Boston Police Pepper Ball Shooting Former U.S. Attorney to Probe Boston Police Pepper Ball Shooting

THE HEADLINE Oakland: ‘Less than Lethal’ Weapons Come Under Scrutiny

Traditional Use of Force Models Do They Work Within the First Amendment? Sources Sources 14 th Amendment’s “Shocks the Conscience” 14 th Amendment’s “Shocks the Conscience” 4 th Amendment’s “Objective Reasonableness” 4 th Amendment’s “Objective Reasonableness” State Statutes State Statutes

“Shocks the Conscience” Rochin, Johnson v. Glick, Sacramento v. Lewis “Shocks the Conscience” Rochin, Johnson v. Glick, Sacramento v. Lewis The need for the application of the force The need for the application of the force The extent of the injury The extent of the injury Applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm. Applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm. Shocks the conscience of a contemporary Judge. Shocks the conscience of a contemporary Judge.

Objective Reasonableness Terry, Garner, Graham The right to use force during a search or seizure is constitutional The right to use force during a search or seizure is constitutional The reasonableness of force is determined by the facts and circumstances of each The reasonableness of force is determined by the facts and circumstances of eachcase. The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene and at the moment of its occurrence. The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene and at the moment of its occurrence.

FIRST AMEMDMENT BACKDROP – ESSENTIAL PRINCIPLES Principle # 1 Principle # 1 Picketing and demonstrations are highly protected. Picketing and demonstrations are highly protected. Edwards v. South Carolina, 83 S. Ct. 680 (1963) Edwards v. South Carolina, 83 S. Ct. 680 (1963)

FIRST AMEMDMENT BACKDROP – ESSENTIAL PRINCIPLES Principle # 2 Principle # 2 Since time immemorial city streets and sidewalks are public fora Since time immemorial city streets and sidewalks are public fora United States v. Grace, 103 S.Ct 1702 (1983) United States v. Grace, 103 S.Ct 1702 (1983)

First Amendment Backdrop Essential Principles Principle #3 Principle #3 Governmental Restrictions are subject to “a high degree of scrutiny” Governmental Restrictions are subject to “a high degree of scrutiny” NAACP v. City of Richmond, (9 th Cir. 1984) NAACP v. City of Richmond, (9 th Cir. 1984) United States v. Grace, 103 S.Ct 1702 (1983) United States v. Grace, 103 S.Ct 1702 (1983)

First Amendment Backdrop Essential Principles Principle # 4 Principle # 4 The Government may not prohibit angry or inflammatory speech in a public forum The Government may not prohibit angry or inflammatory speech in a public forum Brandenburg v. Ohio, 89 S.Ct. 1827(1969) Brandenburg v. Ohio, 89 S.Ct. 1827(1969)

First Amendment Backdrop Essential Principles Principle # 5 Principle # 5 Speech that stirs passions, resentment or anger is fully protected by the First Amendment. Speech that stirs passions, resentment or anger is fully protected by the First Amendment. Terminiello v. Chicago, 69 S.Ct. 894 (1949) Terminiello v. Chicago, 69 S.Ct. 894 (1949)

First Amendment Backdrop Essential Principles Principle # 5 Principle # 5 Subsequent punishment is favored over suppression of Speech. Subsequent punishment is favored over suppression of Speech. Carrol v. President and Com’rs of Princess Anne, 89 S.Ct. (1968) Carrol v. President and Com’rs of Princess Anne, 89 S.Ct. (1968)

First Amendment Backdrop Essential Principles Principle # 6 Principle # 6 Enjoining First Amendment activities before a demonstration poses a clear and present danger is presumptively a First Amendment violation. Enjoining First Amendment activities before a demonstration poses a clear and present danger is presumptively a First Amendment violation. Brandenburg v. Ohio, 89 S. Ct. 1827(1969) Brandenburg v. Ohio, 89 S. Ct. 1827(1969)

Passive Resistance and The Use of Force The Passive Protestor Dilemma The Passive Protestor Dilemma Terry v. Ohio: The right to make an arrest implies the right to use some degree of force or coercion to effect the arrest. Terry v. Ohio: The right to make an arrest implies the right to use some degree of force or coercion to effect the arrest. Graham3 factor test : “and whether actively resisting arrest or attempting to evade arrest by flight” Graham3 factor test : “and whether actively resisting arrest or attempting to evade arrest by flight”

Passive Protestor Dilemma Lower Courts Lower Courts Amnesty International v. Town of West Hartford, 361 F.3d 113 (2 nd Cir. 2004) Amnesty International v. Town of West Hartford, 361 F.3d 113 (2 nd Cir. 2004) Headwaters Forest Defense v. City of Humboldt, 240 F.3d 1185 (9 th Cir. 2001). Headwaters Forest Defense v. City of Humboldt, 240 F.3d 1185 (9 th Cir. 2001). Lamb v. City of Decatur, 947 F. Supp (1996) Lamb v. City of Decatur, 947 F. Supp (1996)

Order to Disperse Dilemma Lawful Order to Disperse Crucial Lawful Order to Disperse Crucial Statutory interpretation must be consistent with 1 st Amendment Principles. Statutory interpretation must be consistent with 1 st Amendment Principles. Example Example NCGS NCGS NCGS NCGS Police definition of imminent threat vs language in Brandenburg Police definition of imminent threat vs language in Brandenburg

Developing a Protocol For Less Lethal Get a seat at the table. Get a seat at the table. Identify stakeholders Identify stakeholders Conduct an LLW/RCA audit and understand how these devices work. Conduct an LLW/RCA audit and understand how these devices work.

Protocol Adopt a protocol for the use of these devices Adopt a protocol for the use of these devices Legal Training Legal Training Understand the Pros and Cons of Each Device. Understand the Pros and Cons of Each Device. Use of Force Investigations conducted whenever used Use of Force Investigations conducted whenever used Educate the Public Educate the Public

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