In response to the death of George Floyd at the hands of Minneapolis police, people across the US and throughout the world have taken to the streets to demand racial justice and an end to police brutality and systematic racism against Black people. Some of the responses of our federal, state, and local governments in the past 72 hours are raising red flags and calling into question the police response to the protests and the curfews that have been imposed.
The right to protest is fundamental to our democracy and sacrosanct. The Founding Fathers thought that the right was so important that they wrote it into the first 45 words of the Bill of Rights and labeled it the First Amendment to the U.S. Constitution:
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.
As the Supreme Court observed in 1958, “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.”
In an eerie coincidence of numerical proportions, the 45th President is aiming to thwart, limit, or outright eviscerate the fundamental right to protest and have grievances heard. On Monday, President Trump left the White House, walked across Lafayette Park in Washington, D.C. and posed in front of St. John’s Episcopal Church while holding a Bible. The path to this photo op was cleared by the U.S. Park Police, Secret Service, Department of Homeland Security, and other agencies. The overwhelmingly peaceful protesters and members of the media then on the streets near the church were driven from the area using aggressive and violent crowd control tactics, which included tear gas, rubber bullets, smoke canisters, pepper spray pellets, and brute force.
The debate as to whether tear gas or smoke were really used on the protesters is hollow. It was a crowd of American citizens engaged in constitutionally protected protests against police violence. It doesn’t matter what was used to clear the demonstration, because the gathered crowd was simply exercising their rights to be heard as they spoke out against the very sort of injustice that was suddenly used to disperse them. Imagine the heartbreaking absurdity of sanctioning police brutality at a protest against police brutality.
The simple reality cannot be brushed aside by rhetoric or partisan sound-bites. The clear and undeniable fact remains that law enforcement officers who harass peaceably assembled citizens are violating the First Amendment, no matter the tactic used. It is unlawful and those rights must be protected.
Even though the incident on Monday in Washington, D.C. occurred before the curfew set by the mayor, curfews in and of themselves violate civil liberties. Public officials at every level of government are making arbitrary decisions about when, where, and what time citizens are allowed to have their voices heard. Just like it is wrong to forcefully disperse protesters before curfew, it is just as wrong to disperse them after curfew.
Under state law, cities and counties can impose curfews during a state of emergency “to provide for the protection of life and property.” However, there must be actual or imminent violence beyond the means of the government to address the issue. But curfews are enforced in very arbitrary and discriminatory ways. Historically, curfews have been used to suppress the voices of the people.
Even if curfews are being enacted for a legitimate purpose, there is an added danger for continued police misconduct. This is not an irrational fear but a stark reality that has been broadcast not only on the television news but throughout social media. The chilling scenes have played out daily since the imposition of curfews where law enforcement rush crowds of peaceful protesters the minute curfew begins — like a ticking time-bomb that explodes as soon as the clock strikes. Many of the violent confrontations have occurred under the cover of curfew enforcement. Unfortunately, depending on the particular agency enforcing the curfew, a crowd could encounter a warning to go home, a ticket, mass arrests, or even rubber bullets.
The government and law enforcement have a goal of curtailing the rioting, looting, and destruction of property. But those interests must be weighed against a sweeping infringement of a fundamental right. The use of force, such as arrests, or the use of less-lethal weapons, should not be imposed against protesters unless strictly unavoidable. Otherwise the intended effect would constitute a muzzling of voices and censorship.
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