HomeMy WebLinkAboutPolicing-and-Protests-RecommendationsThe Honorable Gavin Newsom
September 28, 2020
1
September 28, 2020
The Honorable Gavin Newsom
Governor of California
State Capitol, Suite 1114
Sacramento, CA 95814
Dear Governor Newsom:
When you asked us to serve as advisors to you on policing issues, you requested
we provide you recommendations in two key police practices areas:
1) improving police response to demonstrations and protests in order to protect
and facilitate peaceful free speech and expression; and 2) ensuring that
California’s landmark new use of force laws (AB 392 and SB 230) are
implemented appropriately across the state to foster a culture of de-escalation
in which officers use force only when necessary.
The initial phase of our work has focused on policing and demonstrations. We
write today to provide you our recommendations on this topic. We also have
started engaging stakeholders about implementation, training and oversight
issues related to AB 392 and SB 230 and look forward to providing you those
recommendations soon.
As you no doubt are aware, changes to police practices are necessary but far
from sufficient to address the many ways in which structural racism plays out in
connection with policing and the criminal justice system. In addition to sharing
their thoughts and recommendations on protests and use of force policies,
stakeholders have shared with us a range of important broader policy
recommendations related to policing, criminal justice, and racial justice.
These conversations made clear that reimagining the role of law enforcement is
a top priority for many community members and other stakeholders. Time and
again, we heard stakeholders express a strong interest in shifting some funding
away from traditional law enforcement responses to investments in communities
and other types of first responders such as mental health providers and trained
conflict resolution experts. Law enforcement stakeholders agree that police
should not be first responders for handling mental health and socioeconomic
issues. As your advisors, we wholeheartedly agree and endorse the views of
community members and law enforcement in this area.
The Honorable Gavin Newsom
September 28, 2020
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Our recommendations today focus on improving police response to
demonstrations and protests. We recommend that after we complete our use
of force recommendations, you commission an additional phase of this project.
For the new phase, we recommend engagement of stakeholders and
academic partners to develop a roadmap for local law enforcement and
communities to help guide their discussions around reimagining community
safety.
Below, we submit our recommendations for improving police response to
demonstrations and protests. This is a critical issue because the First Amendment
right to protest is fundamental to our democracy.
As the New York Times Editorial Board recently recognized: “When George
Floyd died under the knee of a Minneapolis police officer, the scourge of police
violence, festering for generations, became a rallying point for Americans
yearning for the fulfillment of this country’s founding aspiration to promote life,
liberty and happiness.”1 Across California, the country, and globally, the murder
of Mr. Floyd has amplified a much-needed conversation on race, police abuse,
and social injustice. Hundreds of thousands of people have taken to the streets,
many for the first time in their lives, to protest racism.
While there are numerous examples of law enforcement professionalism,
restraint, and even solidarity in some instances, there also have been disturbing
and well-documented instances of unnecessary and counterproductive
aggression, instigation, and over-reaction by some police officers and agencies
in response to the demonstrations.
Over the past several weeks, we have participated in dozens of small and large
listening sessions with a wide range of stakeholders and experts from across the
state to hear their concerns and recommendations. We had conversations with
a wide range of community-based organizations and advocacy groups
including racial justice, civil rights and civil liberties advocates, youth and youth
advocacy organizations, and faith-based groups. We also met with statewide
and local law enforcement organizations from small, medium and large cities
across the state. Additionally, we spoke with prosecutors and defense attorneys
and met with Legislators, local officials, and journalists.
Based on our conversations with these stakeholders, there’s a broad consensus
that we can and must do better to protect and facilitate the right to engage in
peaceful protests and demonstrations in California. We also repeatedly heard
1 NYT Editorial Board. “In America, Protest is Patriotic.” New York Times, 2 June 2020,
https://www.nytimes.com/2020/06/02/opinion/george-floyd-protests-first-amendment.html
The Honorable Gavin Newsom
September 28, 2020
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about challenges in mutual aid response related to differing standards, training,
and expectations among participating agencies.
Our recommendations for improving police response to protests and
demonstrations include the following:
a recommended set of core values;
a summary of key themes that emerged from our listening sessions;
possible executive actions;
possible legislative action; and
a set of general recommendations for law enforcement agencies.
As part of this project, Goldman School of Public Policy Professor Jack Glaser
and his research assistant May Lim conducted a review of available research
and analysis related to policing and demonstrations. They conducted this
review with the goal of understanding what are the most effective practices to
support First Amendment rights while minimizing harms, particularly violence and
property damage. A copy of this review is attached and, where relevant,
promising practices identified from the research have been incorporated into
the recommendations below.
According to the research, policing practices for crowd control have varied
over time, place, and agency. Since the 1960’s the dominant (but not universal)
paradigm in the U.S. has shifted from “escalated force” to “negotiated
management.”
The research is consistent with what we have observed in recent protests and
demonstrations in California. First, the overwhelming majority of protests remain
peaceful. Second, violent elements among protest groups tend to be small and
not inevitably violent or destructive. Third, violence often results from
interactions in the dynamics between police and protesters. Finally,
unnecessary injuries occur and violence escalates when tactical weapons are
used inappropriately by law enforcement.
The research also is consistent with the recommendations we make below,
including reinforcing the importance of the following key concepts as essential
strategies for more effective law enforcement response to protests and
demonstrations:
Coordination and Communication: Police should communicate
clearly with assembled civilians, ideally before demonstrations have
started, but also during, in the service of maintaining safety. Law
enforcement agencies should work to establish and keep open
The Honorable Gavin Newsom
September 28, 2020
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lines of communication with protest organizers when possible. They
should also reinforce expectations and values with partnering
agencies in mutual aid relationships to promote consistent
practices.
Avoiding unnecessary enforcement: During protests and
demonstrations, enforcement of low-level offenses or imposing
unnecessary constraints on movement can spark avoidable
conflict. Enforcement should target those who are causing harm in
order to avoid disrupting the First Amendment rights of other
participants.
Minimizing militarization: Militaristic presence (e.g., with armored
vehicles, combat-style helmets or weapons) can be
counterproductive and threatening to peaceful protestors and may
incite or escalate conflict.
Minimizing use of weapons: Deploying weapons, including kinetic
impact projectiles and chemical irritants, can, in addition to causing
injuries and even death, rapidly escalate conflict, and they should
be used as a last resort to protect life and repel assaults when other
means have been exhausted.
We trust that with your leadership and the leadership and partnership of the
Legislature, communities, and law enforcement, it is possible to keep
communities safe while better protecting and facilitating the First Amendment
rights of Californians to engage in peaceful protests and demonstrations.
Sincerely,
Ron Davis Lateefah Simon
The Honorable Gavin Newsom
September 28, 2020
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Protecting and Facilitating the Right to Engage in
Peaceful Protests and Demonstrations
Recommended Core Values for Protests
1. Sanctity of Life and protection from physical injury
2. Facilitation of peaceful protests and free expression
3. Protection of property
Key Themes
Recognition that people have a constitutional right to demonstrate
Recognition that law enforcement’s role is to facilitate peaceful protests and
demonstrations and protect life above all (property secondarily)
Recognition that the vast majority of demonstrators are peaceful
Recognition that there is a better way and there is a need for more
consistency and statewide standards
Proposed Actions - 3 Categories
1. Executive
2. Legislative
3. General Recommendations
Executive
Instruct the Commission on Peace Officer Standards and Training (POST)
to modernize its 2012 Guidelines on Crowd Management, Intervention,
and Control to focus on protection and facilitation of First Amendment
rights rather than on “management” and “control.”
o Recommend that POST convene stakeholders including law
enforcement, community members, and subject matter
experts to ensure updated guidelines reflect promising
practices and best evidence.
Instruct POST to update, expand, or add the following topics to the Basic
Academy curriculum and 2012 POST Guidelines on Crowd Management,
Intervention, and Control:
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September 28, 2020
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o First Amendment
o Legal updates (unlawful assembly, curfew, etc.)
o Professional, ethical, and moral responsibilities
o Crowd psychology (including that crowds are not inherently
irrational or prone to violence and that aggressive or
unjustified police actions can antagonize and galvanize
otherwise peaceful crowds)
o De-escalation
o Community relations and advance planning
o Use of force proportionality, including emphasis on restraint
and accountability, de-escalation, and AB 392 necessity
requirement
o Distinguishing civil disobedience from violence or riots
o Other areas (see general recommendations below).
Instruct POST, in coordination with the Governor’s Office of Emergency
Services, to develop a train the trainer course for mutual aid coordinators.
Instruct POST to develop best practices and training guides for law
enforcement to identify, monitor, and strategically detain individuals
suspected of violence and/or destruction of property during protests and
demonstrations.
Form a working group to evaluate and update conditions of mutual aid,
including the standardization of command and control, use of force,
communications, and operational plans.
Legislative
Prohibit the use of dogs and water cannons for crowd control or to
disperse crowds.
Restrict the use of less-lethal projectiles and chemical agents to defensive
actions to protect life, repel serious assaults, and, when other means have
been exhausted or are not feasible, to disrupt the significant destruction
of property.
Require all California law enforcement officers to receive regular training
regarding the First Amendment and responding to demonstrations and
protests.
Clarify the definition of unlawful assembly and the process by which it can
be declared (which is a necessary condition for crowd dispersal).
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September 28, 2020
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Require officers to intervene to prevent or stop other officers from
engaging in excessive force, false arrest, or other inappropriate conduct.
Require officers to report the misconduct of other officers.
General Recommendations
Sheriffs and other local mutual aid coordinators should convene
local stakeholders, including community members, law
enforcement, and local government representatives to update or
establish county operations and response plans (including tabletop
exercises) for demonstrations, protests, and other mass events.
Establish communication and coordination channels between
government actors in advance of known demonstrations or protests
so that decisions can be quickly made and/or communicated.
Establish early and open lines of communication with organizers as
a key strategy for planning, facilitating, and de-escalating issues if
needed.
o Establish relationships before crises to build trust.
o Train community ambassadors or other responders to assist
with communication, de-escalation/intervention, and other
functions.
Designate a point of contact for media inquiries.
Establish clear and visible leadership with prescribed protocols for
relaying of commands; especially important with mutual aid.
Provide clear communication to public in advance of known
protests and demonstrations re: commitment to protecting rights
and intolerance for violence.
Line up resources before they are needed and, when possible,
stage away from demonstrators.
Establish and reinforce with all participating officers, including
mutual aid officers, clear goals (e.g., protecting 1st A rights,
protecting critical infrastructure), and plans for how to accomplish.
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September 28, 2020
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Establish and reinforce common standards, training, and rules for
mutual aid including regarding enforcement priorities, use of force
standards, warnings, and equipment.
Recognize that police presence can have an escalating effect and
be prepared to dial up or dial down visibility (e.g., do not start with
visible armored vehicles and riot gear).
If equipped, require all officers in direct contact with demonstrators
to wear and activate their body cameras during protests and
demonstrations.
Use dispersal orders strategically (as they may have an escalating
effect); when given, ensure dispersal orders are clear, loud, in
multiple languages where appropriate, and that individuals are
given sufficient time to disperse with clear, visible, and ample
means of egress.
Ensure protection for journalists and legal observers exercising their
right to record and observe police activities during protests and
demonstrations.
o Provide officers training on the role and rights of journalists
and how to facilitate their ability to report on protests and
demonstrations.
o Establish a media center and/or point of contact for
journalists who are covering the event.
Importance of quick, targeted intervention to stop violence and/or
incitement; need to isolate antagonizers and not disrupt peaceful
demonstrators (“identify, target, isolate, remove”).
o Identify and address the role of hate groups, including white
supremacists, in disrupting protests and committing and
instigating violence and looting.
o Partner with protest organizers, legal observers, demonstration
marshals, and public safety liaisons to help identify and
address potential problems before they escalate.
o Prohibit the undercover infiltration of constitutionally
protected demonstrations and protests unless there is a
criminal predicate to support such activity.
The Honorable Gavin Newsom
September 28, 2020
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Limit amount of time officers can be on the line and establish ability
to tap out or be pulled out based upon risk factors observed by the
officer, other officers, or a supervisor. Risk factors should include
signs such as fatigue, unmanageable stress, or other factors which
may impact an officer’s ability to safely and appropriately perform
their assignment.
Conduct daily briefings with mutual aid agencies to reinforce
policies, priorities, and command structure.
Conduct after-action reviews to identify what went well and what
can be improved.
Involve prosecutors’ offices in front-end discussions regarding the
possibility of curfews or other enforcement strategies and priorities
and to provide training on relevant laws (e.g., distinguishing
burglary from looting charges).
Include prosecutors and/or other legal advisors on-site at
emergency operations centers to provide legal advice and
guidance.
Oversight and accountability: tailor oversight to local jurisdiction;
consider role to include monitoring event, accepting and
investigating complaints (including mutual aid), compliance with
policies, procedures, and training.
o Local mutual aid coordinators and/or lead law enforcement
agencies should coordinate centralized civilian complaint
processes to ensure all complaints associated with
demonstrations and protests are received and investigated.
Review of Research on Policing Demonstrations
Prepared by Jack Glaser May Lim
Goldman School of Public Policy
University of California,Berkeley
July 28,2020
I.Executive Summary
This report on research on policing demonstrations reflects a review of scholarly
books and chapters,scientific journal articles,NGO guidance documents,and other
grey literature”to identify major themes and promising practices to reduce
conflict and violence.
Summaries of guidance documents from California’s Peace Officer Standards and
Training POST),the International Association of Chiefs of Police IACP)and others
reveal that such guidances,while clear and comprehensive,tend to emphasize
operational considerations but fail to reflect current understandings of crowd
psychology”and unnecessarily discourage communication between police and
demonstrators.
The main findings from systematic research on demonstrations and policing start
with an acknowledgment that policing practices for crowd control vary over time
and place and agency).Since the 1960’s the dominant but not universal)
paradigm in the U.S.has shifted from escalated force”to negotiated
management.”
There is considerable consensus among researchers on five essential points:
Contrary to theories of crowd behavior originating in the 18th Century,
crowds of people are not inherently irrational,de-individuated,or prone to
emotional contagion.
The overwhelming majority of protests remain peaceful.
Violent elements among protest groups tend to be small and not even
inevitably violent.
Violence tends to result from interactions in the dynamics between police
and protesters.
Unnecessary injuries and even deaths occur and violence escalates when
tactical weapons are used inappropriately.
The research supports a focus in policing reform on key issues:
Communication:Police do well to communicate clearly with assembled
civilians,ideally before demonstrations have started,but also during,in the
service of maintaining civility.Law enforcement agencies should work to
establish and keep open lines of communication with partnering agencies in
mutual aid relationships,to promote consistent practices.
Review of Research on Policing Demonstrations
Page 2 of 18
Respecting spatial boundaries:Violence is more likely to erupt if protestors
or police violate each others’territories.Making expectations about
territories e.g.,protest zones)explicit,so long as they are respected,can
reduce upheaval.
Avoiding unnecessary enforcement:As with territorial incursions,
enforcement of low level offenses or unnecessary requirements of
movement can spark mass conflict.
Minimizing militarization:Militaristic presence e.g.,with armored vehicles,
combat-style helmets)can be threatening to peaceful protestors and incite
conflict.
Minimize use of weapons:Deploying weapons e.g.,batons,kinetic impact
projectiles,chemical irritants)can,in addition to causing injuries and even
death,rapidly escalate conflict,and they should be used as a last resort,
defensively or to disperse a crowd that has been declared unlawfully
assembled.
Additional smart practices implied by research and supported by discussions with
stakeholders and experts include ensuring demonstrators have a clear and visible
means of egress,targeting only destructive individuals for arrest,and pursuing
unambiguous coordination among multiple responding agencies.
Three significant thematic challenges emerged:1)How to balance officer safety
gained by armor,weapons,and offensive configurations against the escalation they
tend to engender;2)How to target destructive individuals without being viewed as
violating territory and triggering broader disruption;and 3)What are the most
promising methods for de-escalation given that research to date has not shown
benefits?
II.Introduction
The purpose of this report is to transmit a review of available research and
analysis on policing demonstrations conducted with an eye to understanding what
are the most effective government practices,particularly policing,to support First
Amendment rights while minimizing harms,particularly violence and property
damage.The review surveys a variety of research types,seeking empirically
grounded psychological and sociological insights into crowd behavior and how it
responds to various crowd control approaches.Promising and problematic
practices will be identified and discussed.
The types of research sources reviewed included scientific journal articles,
books,book chapters in edited volumes,government reports,training documents,
and other grey”literature,such as advocacy group recommendations.Much of the
research involves qualitative review through case studies of actual protests often
single cases,but in some studies many),but some of the research involves rigorous
quantitative analysis of protester surveys or archival data.
Review of Research on Policing Demonstrations
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As den Heyer 2020)notes,perhaps too dismissively,in his very recent,
extensive book on Police Response to Riots,
Extensive literature that examines the approach taken by the police to
crowd management during protests and that identifies various options
for the police to consider if they wish to improve their management of
such events is available.However,no research has been conducted that
would inform the police as to how they could improve their response to
a riot,nor has any literature identified methods for managing protests
that contain violent individuals or groups den Heyer,2020,p.50).
In fact,although there is no known research that has conducted randomized
controlled trials to test policing strategies on crowd management outcomes,there
are research-based inferences that can be made about what is likely to work and
not work well.We will highlight Nassauer’s work in particular,which represents a
very rigorous comparative analysis of 30 protest events,including those with
violent and peaceful results.
It is worth noting as well that many,if not most,public protests do not elicit
a police presence Earl,Soule,McCarthy,2003),although,not surprisingly,Earle
et al.find that the larger the event,and the more radical the goals,the more likely
there will be a police presence.
III. Recent guidances and current practices
Before considering social scientific research,we review some of the
substantial materials developed by large law enforcement organizations to provide
policy and practice guidelines for individual agencies.We will review here some of
the most influential and recent.All have a highly operational flavor,appropriately
providing guidance to agencies on the mechanics of crowd management.There is
some reference to prioritizing free expression,coordination with organizers,
limiting use of force,and de-escalation.But there is little evidence of research
influence.
California’s Peace Officer Standards and Training POST)2012).
POST’s Crowd Management,Intervention,and Control document states clearly that
it represents guidelines,rather than policy or standards.It provides a
comprehensive description of various dimensions of considerations that have to be
made in preparation long and short term)for policing demonstrations.
POST’s description of law enforcement’s role,to distinguish between lawful
and unlawful behavior in demonstrations p.3)is perhaps too simplistic,with
many agencies strategically overlooking some unlawful behavior such as roadway
blocking.But the report goes on to more subtly distinguish among lawful,isolated
unlawful,unlawful,and riotous”crowd behaviors.Furthermore,the guidelines
later offer some flexibility in responding to criminal acts:Crowds and criminal acts
committed by participants within the crowd require a flexible response.Strategies
include containment,control,communication,tactical information,coordination
Review of Research on Policing Demonstrations
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and response”p.31)and acknowledge that crowds are heterogeneously
composed.
In line with common best practice,POST encourages coordination with
event leaders,to the extent possible.The language on dispersal is very clear and
prescriptive,but could be interpreted as providing legal guidance more than
strategic guidance:
The decision to declare a crowd unlawful must be based upon
reasonable and articulable facts.The definition of an unlawful
assembly has been set forth in Penal Code section 407 and interpreted
in court decisions.The terms boisterous’and tumultuous’as written
in Penal Code section 407 have been interpreted as conduct that poses
a clear and present danger of imminent violence In re Brown 1973)9
Cal.3d 612,623.].”POST,2012,p.33).
More in the way of strategic guidance,POST makes a clear statement of the
importance of making dispersal announcements heard,and recording,for
accountability purposes,when all the announcements were made and who made
them.However,the dispersal order template provided in the POST document is
very direct,bordering on officious.A more cordial approach could reduce the
likelihood of physical resistance.
POST’s use of force guidance is generic,and permissive:
Peace officers need not use the least intrusive force option,but only
that force which is objectively reasonable under the totality of the
circumstances;Scott v.Henrich,39 F.3d 912 9th Cir.1994),and
Forrester v.City of San Diego,25 F.3d 804 9th Cir.1994).When
feasible,prior to the use of a particular force option,officers should
consider the availability of less-intrusive measures;Young,655 F.3d at
1166;Bryan v.McPherson,630 F.3d 805,831 9th Cir.2010)”p.39).
Regarding chemical agents,the guidance is loose:Each agency should
consider when,where,and how nonlethal chemical agents may be
deployed,and consider potential collateral effects POST 2012,p.41).
Overall,the POST guidelines cover a lot of topics and consider many
variables,but tend to be descriptive and emphasize common legal standards as
opposed to evidence-based approaches for promoting optimal outcomes.
A more recent set of guidances is offered through a training manual
published by Ohio Peace Officer Basic Training July 2019).Encouragingly,there
is repeated emphasis on legal,moral,professional and ethical responsibilities.”
e.g.,p.7).On the other hand,based on the stated student objectives,the course
seems very command and control oriented:
At the end of this topic,the student will be able to:
Review of Research on Policing Demonstrations
Page 5 of 18
1.Explain the balance between First Amendment rights and the need to
protect public safety and property.
2.Describe mob behavior.
3.Describe the basic concepts of perimeter crowd control.
4.State the common uses for a mobile field force.
5.Demonstrate a column formation.
6.Demonstrate a line formation.
7.Demonstrate a wedge formation.
8.Identify the color codes and each associated chemical agent that may be
used by law enforcement agencies.
9.State the steps for administering first aid to an individual who has been
exposed to the chemical agents OC or CS.”p.9)
Like the POST guidelines,the emphasis in the Ohio training
recommendations is on distinguishing between lawful and unlawful conduct.
There is a significant section on de-escalation,including building rapport with
protestors,and an acknowledgment that most demonstrators are resistant to
committing acts of violence.It is very difficult for those not bent on unlawful
behavior to fight with the police when officers have been professional and
respectful to those encountered”p.13)
An admonition to not engage demonstrators in any conversation without
supervisory direction except the giving of verbal commands”p.14)offered in the
section on de-escalation,not in the context of violence already occurring,seems at
odds with emerging best practices,and likely to promote tension.A similar
admonition in the IACP Model Policy from April 2019 discussed below)provides a
stronger signal that such a prohibition applies to conversations about topics related
to the demonstration,perhaps to prevent arguments from erupting between
demonstrators,counter-demonstrators,and police.Nevertheless,such approaches
could cast a chill on officer-demonstrator relations.
The Ohio document seems to reflect an old-fashioned crowd psychology,
indicating anonymity,”universality,”and irrationality”of crowds.This will be
discussed later contemporary social scientific evidence supports a very different
characterization.
The Ohio document recognizes the problems associated with a large policing
presence,recommending that additional officers be posted nearby but out of
sight.”p.18).However,they recommend plain clothes officers in the crowd:
When safe to do so,use plain clothes officers to monitor the crowd from within the
group to identify potential instigators”p.25).However,there is a danger that such
postings,if discovered,can serve to violate protestors’territory and sense of
control and consequently incite violence.
One section indicates a clear preference for diplomacy over force:
Crowd control of an unlawful disturbance or riot
a.Dispersal,not mass arrest,is key when trying to stop a riotous crowd
b.Diplomacy is preferred over a show of force,if possible
Review of Research on Policing Demonstrations
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c.It is important for officers not to overreact,but they must be prepared to
act quickly in order to disperse the crowd as soon as possible
d.When forming a dispersal squad,do so out of sight of the crowd,yet
close enough to respond quickly if needed
e.When attempting to break up a crowd,continue to spread them out so
they do not regroup somewhere else”p.25).
It may be worth noting that the Ohio document lists only the advantages
not disadvantages)of using chemical agents p.50).Given the clear and broadly
recognized risk associated with using these tactical weapons,this may raise
concern.Furthermore,the instructions for chemical agent deployment are not
clear that canisters should not be aimed at people pp.57-58).
In a set of three related documents on Crowd Management”the
International Association of Chiefs of Police April 2019)provides a model
policy”on crowd management.The IACP recommends that officers monitoring
crowds should have identification clearly visible at all times,and that Fire and EMS
should be present before dispersal orders are made.Like the earlier POST and
more recent Ohio guidances,they distinguish only between civil disturbance”
unlawful)and demonstration”lawful),losing some important strategically and
operationally relevant nuance that civilly disobedient demonstrators can be
peaceful.In fact,in the Model Policy Document,IACP conflates civil disobedience”
with riot,”again losing important nuance that could allow departments to handle
civilly disobedient demonstrations,like road blockages,diplomatically.
The IACP documents note that self-policing among protesters happens,in
some instances even with handouts prepared in advance to guide protesters on
conduct.But they also note that out-of-town”elements sometimes participate,the
implication being that outsiders are less likely to be of like mind with locals
preparing for peaceful protest.
The IACP documents offer mostly operational guidance,with little reference
to de-escalation,except,When lines of communication have been maintained
between event organizers or leaders and a law enforcement liaison,it is sometimes
possible to negotiate a resolution to the situation.Given such situations,many
crowds tend to become self-enforcing to ensure that they can continue to assemble
and convey their message”p.6 of Concepts Paper).
IACP offers some specific use of force limitations:no canines;no horses used
against passive protestors;no firehoses;CS gas generally shouldn’t be used;riot
baton as defensive or prod only.Bicycles are recommended as a less threatening
mode of transportation.IACP recommends that dispersal warnings be recorded
whenever possible.
The Model Policy document makes a clear effort to walk the line between
coordination and engagement:
Officers shall be positioned in such a manner as to minimize contact
with the assembled crowds.”p.2)
Review of Research on Policing Demonstrations
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Individuals designated by the IC should establish and maintain
communication with event organizers and relay information on crowd
mood to the IC.”p.3)
Mass arrests shall be avoided,unless necessary.”
Unless exigent circumstances justify immediate action,officers shall not
independently make arrests or employ force without command
authorization.”p.3)
USDOJ COPS Office Ferguson After-Action Report.A different,but
nevertheless instructive,type of government report on policing protests comes in
the form of a thorough after-action investigation carried out and reported
Institute for Intergovernmental Research,2015)by the US DOJ’s Community
Oriented Policing Services office on the protests that occurred in Ferguson,
Missouri after the fatal officer-involved shooting of an unarmed,Black teenager,
Michael Brown.Clear implications of that investigation included the following:
1. Police-community relationships:Ferguson PD had virtually no established
community relationships with the residents”of the complex where Michael
Brown was killed.
2. Command and control:The incident command structures throughout the
evolution of the Ferguson demonstrations were uncoordinated and
incomplete in the early days.”Use of intelligence products was
minimal.”Law enforcement agencies initially offered limited public
information and did not commit to proactive communications with the
public.”Lack of coordination led to inconsistent and untracked deployment
of less-lethal weapons.
3. Use of force:Inappropriate canine use.Instances of inappropriate
deployment of tear gas.Military weapons and sniper deployment was
inappropriate,inflamed tensions,and created fear among
demonstrators.”Elevated daytime response was not justified,and served to
escalate.
4. Militarization:Overwatch tactic”snipers use rifle sites to monitor crowd)
was inappropriate and fear-evoking.Visible staging of armored vehicles was
threatening.
5. Need for preparation:It is too late to prepare once protest and violence has
erupted.Officers need full preparation,including understanding of
demonstrators’rights,civil disobedience,and unlawful assembly.
6. Social media:Police were unprepared for the impact and rapid
dissemination of information.
7. Protection of constitutional rights:Keep moving”orders and the inherent
threat of arrest or force)risk violating First Amendment protections of free
speech and assembly.Unified command in Ferguson failed to establish a
clearly marked First Amendment free speech zone.”
8. Accountability and transparency:Some officers removed their nameplates.A
lack of confidence in the complaint process may have caused a deceptively
low rate of complaints.
Review of Research on Policing Demonstrations
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9. Officer resilience:Officer shifts were long and often entailed verbal and
physical abuse from protestors,particularly toward minority
officers.Transition from traditional nameplates to identity numbers on
badges would preserve accountability and offer the individual officer some
protection.”
10. The role and impact of protestors intent on exploiting the demonstrations:
There were some,including self-described anarchists,who joined intent on
causing problems.Community members noted big differences in the nature
of activities during daytime more peaceful)versus nighttime hours.
The documents from POST,Ohio,the IACP,and USDOJ indicate an
acknowledgment of many of the challenges of policing protests,nods to the notion
that crowds are heterogeneous and not inherently prone to violence,and tend to
provide clear operational guidance or,in the case of Ferguson,cautionary tales).
However,they generally fall short with respect to reflecting systematic research on
crowd behavior in general and policing protests in particular.
IV.Main Findings from Research
There is considerable consensus in the research literature around several
key issues relating to demonstrations.First,the overwhelming majority of protests
remain peaceful.Second,violent elements among protest groups tend to be small
and not even inevitably violent or destructive.Third,violence tends to result from
interactions in the dynamics between police and protesters.Finally,unnecessary
injuries and deaths occur and violence escalates when tactical weapons are used
inappropriately.We will return to these findings after a general consideration of
the relevant research.
Protest policing strategies vary over time and place Brown,2015;Den
Heyer,2020;Logan,2019;McPhail,Schweingruber,McCarthy,1998;Vitale,
2005,2007).Historically,in the U.S.modern policing of protests was characterized
by a doctrine of escalated force”in the 1960s and 1970s,in which police tended to
be punitive and focused on crowd control.This was followed by a general trend
toward negotiated management”in which public safety officials coordinate with
protest organizers in advance,to the extent possible,and establish clear
expectations.This approach has persisted in many places,even as there was
emergence of a strategic incapacitation”trend following the September 11,2001
terrorist attacks Gillham,2011;Gillham,Edwards,Noakes,2013).The focus in
strategic incapacitation is on isolating and/or neutralizing disruptive individuals or
groups,and reflected,tactical innovations introduced by transgressive protesters
during the Seattle cycle of protests and]contributed to the end of a long,relatively
stable period of détente between police and protesters in the United States”
Gillham Noakes,2007,p.341).Strategic incapacitation accelerated in response
to the Occupy Wall Street protests that Gillham and colleagues describe as
transgressive,”where protesters refused pre-negotiation with police.
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Protest policing appears to have generally returned to a negotiated
management model,aggressive police tactics in recent Black Lives Matter protests
notwithstanding.
The myth of the mob.”
Perhaps the most influential social scientific influence on protest policing
has been notion of the deindividuated crowd”or mob.”However,research in
recent decades has emphatically rejected this notion that crowds are inherently
irrational and emotionally contagious Borch,2013;den Heyer,2020;McPhail,
1991;Reicher,2011;Schweingruber,2000).Illustrating a troubling implication of
this misconception,Hoggett and Stott 2010;see also Reicher,Stott,Drury,Adang,
Cronin,Livingstone,2007)show that police officers’perceptions of crowds as
inherently irrational have a self-fulfilling effect on crowd violence.
The reality is less bleak.Research indicates that 92%to 98%of protests
stay peaceful Nassauer,2019,citing others,p.6).Stott 2011)argues that crowd
control would benefit from police being educated about the cultural norms of
crowds,specifically,dispelling the myth that crowds are inherently irrational.On
the other hand,there is some evidence Cocking,2013)that aggressive or
indiscriminate dispersal actions can galvanize a crowd and be counterproductive.
In a more rigorous study,Snipes,Maquire,and D.Tyler 2019)found that
protesters indicated greater willingness to engage in civil disobedience,even
vandalism,when they perceived police actions as procedurally unjust.In sum,
crowds are not inherently irrational and unruly,but aggressive and unjust police
actions can antagonize and galvanize them.
Current research in crowd behavior points to the idea that police presence
at a protest also constitutes a crowd,”meaning that crowd behavior theory can
provide insights for police behavior as well.There is also evidence that points to
individuals having an inhibition threshold,after which they can cross over into a
stage of panic and loss of control,leading to violent behaviors Nassauer,2015).
Police officers engaging in such behavior often act out as an individual,forgetting
that they are part of a larger unit.
Having moved past the outdated theory of the deindividuated mob,
researchers who study policing of demonstrations exhibit considerable consensus
with regard to a number of important factors,including communication with
protesters,respecting territorial boundaries,avoiding unnecessary enforcement,
and minimizing militarization.
Communication.
There is general consensus,even where pitfalls are pointed out e.g.,Baker,
2014),that pre-demonstration negotiations between public safety officials and
demonstration organizers generally promote more peaceful outcomes.Nassauer
2019),discussed further below,identifies communication as a critical element of
successful,peaceful crowd management.Holgersson and Knutsson 2011),after
analyzing the failures of policing of the riots in Gothenberg,Sweden,in 2001,relay
Swedish national basic tactics”advising that officers policing riots be prepared for
stress and have a communicative mindset.The Swedish national principles for
Review of Research on Policing Demonstrations
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policing protests are:Facilitation of demonstrations);Dialogue;Counterpart
perspective perspective-taking to avoid escalation);Differentiation police actions
should not be the same for all protestors);Signal value display readiness to use
force);State moods of crowds green,yellow,red).Davies and Dawson 2018),
however,drawing on a review of the 2011 Stanley Cup Riot in Vancouver,caution
that the meet and greet”strategies that are so promising in policing relatively low-
risk crowds may not work for higher risk situations.
Although no research was found on the importance of communication within
police organizations,discussions with police practitioners have revealed emphatic
support for clear,bounded,and well structured communication within and
between responding agencies.This has clear implications for the importance of
developing procedures for real-time communication down the chain of command
as well as cooperative and consistent mutual aid collaboration between agencies.
Recognize and respect territorial boundaries.
Nassauer 2019;see also 2015 2018),through in-depth,multimedia and
multi-method analysis of 30 protests that occurred in Germany and the U.S.
between 1960 and 2010,identified important dimensions of crowd and police
behavior in protests.Nassauer studied events that turned violent as well as those
that remained peaceful,noting that much research on protests has selected on the
dependent variable”of violence,thereby limiting inferences about things that cause
and obviate violence.
Surprising outcomes occur because of situational breakdowns
moments of emotionally charged chaos and poor communication.In
these situations,people are confused and overwhelmed because the
interactional and organizational routines they usually rely on have
collapsed…However,such instances do not unfold randomly but due
to specific patterns and are therefore not beyond our control.
Nassauer,2019,p.7).
Nassauer has observed that the occurrence of violence can be explained by
interactions among five primary situational factors:spatial incursions;police
mismanagement;escalation signs;property damage;and communication problems.
Nassauer identifies three pathways along which these factors intersect to cause
violence,but notable is the fact that spatial incursions”is common to all three,
suggesting that it is a necessary but not sufficient condition for violence to erupt.
Accordingly,one especially clear implication of Nassauer’s careful work is that
spatial incursions,in either direction,should be avoided.
Nassauer 2019),in making recommendations,also highlights the
importance of good communication by police and protesters,to help reassure each
other of good intentions.She also highlights the need for good police management,
meaning clear oversight and coherent plans of action.
In an interview July 17,2020)with Chief Davis and Professor Glaser,
Nassauer explained that communication from police should be clear and positive,
conveying that police are there to facilitate a successful demonstration.Nassauer
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also noted that the presence of plain-clothes or undercover officers among
protesters,if discovered,would likely be seen as a territorial incursion,thereby
increasing the likelihood of disorder and violence.In contrast,lightly armed or
unarmed personnel wearing colored vests clearly marked with Communication
Team”can be seen as nonthreatening ambassadors who can be helpful while
reducing tensions.
Avoid unnecessary enforcement.
Legal scholar El-Haj 2015)writes,If we want to preserve the unique
functions of outdoor assembly as a form of politics...we need to reconcile ourselves
to the fact that we must increase our tolerance of the disorder and disruption
associated with it”pp.984-985).
Implementing a more robust right of assembly does not entail as radical
a transformation as one might imagine.To be certain,the public would
be asked to tolerate a lot more than it currently does.On the other hand,
many cities,as a matter of discretion,already allow more spontaneous
and disruptive crowds than they are strictly required to by
contemporary constitutional doctrine.Essentially,the transformation
would require enshrining these practices in law El-Haj,2015,p.985).
Aggressive pursuit of rule compliance can be counterproductive.Writing
about the WTO riots in Seattle,Gillham and Marx 2000)note that,After the
curfew was declared…police chased groups of people through the streets with tear
gas and pepper spray.As news of police behavior spread,many demonstrators felt
an increased sense of solidarity and a need to stand up to police efforts at control,
beyond the original goal of protesting against the WTO”pp.223-224).Adding to
the challenge is the likelihood that aggressive rule enforcement can affect even
those who are not the direct targets of enforcement.As Waddington 1987)put it,
The disorganised approach to public order policing leads not only to
ineffectiveness and excessive force,but can also result in injustice being done to
individuals in the crowd.The tendency to make arbitrary and essentially random
arrests arises from the confusion that almost invariably accompanies scenes of
disorder”p.41).
Minimize militarization.
Militarization,in terms of equipment e.g.,armored vehicles,combat-style
helmets),clothing e.g.,camouflage,armor),weapons e.g.,grenade launchers),and
tactics e.g.,officer formations)is a topic of concern regarding policing in general,
exacerbated by the direct transfer of equipment from the military to state and local
police departments.Given the psychological tensions associated with crowd
control,a militarized presence,consistent with the earlier era of the escalated
force”approach to crowd control,is likely to increase anxiety and tensions,
perhaps setting the stage for volatility.The need for safety,perhaps promoted by
armoring,is an understandable one,but may promote a warrior mindset”
Stoughton,2014-15).In fact,Stott,Adang,Livingstone,and Schreiber 2008),
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studying policing of European football hooliganism,found that non-paramilitary
style policing was associated with less disorder.In a study reflecting on both
minimizing militarization and the value of positive communication,Masterson
2011)highlights the success of Vancouver police who developed a meet-and-
greet strategy.Instead of using riot police in menacing outfits,police officers in
standard uniforms engaged the crowd.They shook hands,asked people how they
were doing,and told them that officers were there to keep them safe.This created a
psychological bond with the group that paid dividends.It becomes more difficult
for people to fight the police after being friendly with individual officers.”1
Even the presence of police in riot gear could cause the crowd to engage in
behaviors they would not have otherwise.It has been found that when police begin
using traditional crowd control tactics e.g.tear gas,rubber bullets,kettling),
protestors in the crowd find increased solidarity and connection with one another
and a sense of defiance in the face of perceived injustice,and they begin to shift
their focus of protest to what they feel are unjust behaviors by the police,rather
than the cause for which they first gathered Gillham Marx,2000).Certain
preemptive actions by the police,such as wearing riot gear to a protest or putting
on gas masks,can signal a lack of trust to the protestors Nassauer,2015;
Waddington,1987).Other factors that can lead to possible escalation of violence
include police behaviors that lead to their loss of legitimacy Masterson,2011;
Stott,Hoggett,Pearson,2012).This is related to Procedural Justice Theory PSJ),
which theorizes that individuals will be less likely to comply with the law if they
feel that officers are acting without justice and legitimacy.
Minimize Weapon Use.
As the US DOJ’s COPS Office after-action report 2015)on the Ferguson,
Missouri 2014 protests noted,
The use of force via less-lethal weapons should be a last resort to
maintain order and should be used only in a manner consistent with
law and agency policy,after alternatives have been reasonably
exhausted,after multiple warnings have been given to demonstrators,
and in situations when the threat to the safety of persons and
protection of property are in imminent jeopardy.When the decision is
made to use these weapons,the police should be tactically placed to
ensure that demonstrators have clear avenues of escape from the
demonstration area.The goal of these technologies is to disperse
protesters,not capture them.In addition,the use of force must be
documented pg.46-47).
Dr.Rohini Haar,an emergency physician and adjunct professor at UC
Berkeley’s School of Public Health,conducts research on crowd control weapons.
She and her colleagues have found chemical irritant weapons to cause serious
injury despite the general belief that they are safe:
1 Meet-and-greet”strategies,as noted earlier in this report,may not work in high risk situations.
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The prevailing presumption about these chemical agents is that they
cause minimal and transient irritation to the skin and eyes,but are
generally safe for use on diverse populations.However,we found that,
by design or by inappropriate use,chemical irritants can cause
significant injuries as well as permanent disabilities.While deaths were
rare,we identified one death directly caused by the blunt trauma from
the projectile and another from high dose exposure to the chemical
agent in a closed environment Haar,Iacopino,Ranadive,Weiser,
Dandu,2017,p.10;see similar findings by Hu et al.,1989).
Haar and colleagues point out that,in addition to being potentially injurious to
their intended targets,Chemical irritants,especially those deployed in aerosolized
forms,are inherently indiscriminate and can affect not only the intended targets but
also peaceful demonstrators,bystanders,nearby communities and residences,and
law enforcement officers themselves”p.11).They recommend that,CCWs should
only be used in situations where particular individuals pose an imminent violent
threat,or where a protest requires dispersal because of widespread violent acts that
pose an imminent threat to public safety.In most situations where we found these
weapons being used,neither of these conditions was documented”p.11).
The same researchers found a much larger number of serious injuries as
well as fatalities resulting from the use of kinetic impact projectile KIP)weapons
such as rubber bullets and wooden projectiles Haar,Iacopino,Ranadive,Dandu,
Weiser,2017).
Additional promising practices implied by research and expressed by practitioners.
Strongly implied by research and explicitly expressed by practitioners is the
need to use weapons as a last resort.Aside from the direct implications of injuries
and risk of mortality created by weapon use,the anxiety and indignation their use
can evoke in the crowd may effect more harm than good.Similarly,it is clear in
writing and discussions that police managing protests must ensure that the crowd
has clear and accessible egress options.The older technique of kettling”to section
off and control crowds can lead to mass anxiety and violence.Identifying and
singling out violent or destructive individuals for arrest is preferable to taking action
against a collective i.e.,mass arrest”)that is largely peaceful,if not law-abiding.
The inherent challenge in this case is to effect these arrests without the larger
group being set off by a territorial incursion see Nassauer,2019).Finally,it is
imperative that when multiple agencies are responding i.e.,mutual aid”)there is
unambiguous coordination among them den Heyer,2020).This poses interagency
challenges as different departments have different use of force policies and
cultures.
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V.Significant themes and challenges
The review of the research literature and interviews of experts and
stakeholders has revealed some overarching themes that are worth considering in
order to foster a better understanding of the challenges of policing demonstrations.
The officer safety vs.escalation tradeoff.
As Stoughton describes,there is an understandable urge to employ tools and
tactics that ensure the safety of police officers.However,some of these tools and
tactics,while promoting immediate and proximal safety e.g.,hardening against
weapons)may have externalities that undermine safety in the broader sense.Most
prominently,the armoring of officers with paramilitary equipment will reduce the
harm of a hurled object,but it may also,by signaling aggression,increase the
likelihood of the object being hurled.As Nassauer and others write,a single
escalatory act can cause a cascade of violence,so the immediate gain from
armoring may pose a large net loss in public safety and even officer safety.At one
far end of this continuum are police who are so armored as to be invulnerable,but
violence that is nearly inevitable,or a sense that free speech is utterly constrained.
At the other end is the protest that is not policed at all as,in fact,is the case for
many),with a reduced likelihood of reactive violence,but no official response to
property damage and interpersonal violence.This is a tradeoff that must be
continually confronted.
Targeting destructive individuals without triggering broader reaction.
It is essentially accepted that police do well to isolate individuals who are
destructive and/or violent rather than incapacitating the collective.In fact,often
this is exactly what most demonstrators want them to do,because the violent
instigators are working at cross-purposes with the movement’s goals.
Nevertheless,there is a real risk that isolating and arresting such individuals will
be perceived as an incursion into the demonstrators’territory,something Nassauer
has identified as a critical condition for instigating crowd violence.Policing
professionals will do well to develop tactics for executing such arrests while
signaling to the crowd the clear limits of their intentions and actions.
De-escalation.
An intuitively appealing concept in policing in general,de-escalation takes
many forms.Regrettably,the evidence base for effective de-escalation tactics is
lacking.A very recent empirical review Engel,McManus,Herold,2020)of 64 de-
escalation training programs found no evidence of improvements in outcomes.
However,another finding of great importance was that the researchers were not
able to identify any robust evaluations of de-escalation training in all of criminal
justice.While there is reason for concern that the lack of evidence indicates that de-
escalation programs as currently constituted may not reduce conflict and/or
improve outcomes,there is also still ample reason for optimism that,in policing in
particular,de-escalation tactics can reduce negative outcomes.Furthermore,in the
Review of Research on Policing Demonstrations
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specific domain of crowd management,with the potential for heated emotions,de-
escalation seems a worthy objective,at the very least warranting further study.
VI.Conclusion
Many factors will need to be considered in making recommendations for
reform of crowd control and use of force policies and practices.The research
reviewed here clearly indicates that police should minimize militarization and use
weapons only as a last resort.Communication and coordination with protest
organizers appears to be effective,and the peace can be kept by care to avoid
unnecessary territorial incursions.There are many technical and operational
considerations and puzzles,but it is clear that policing protests is a fundamentally
human,social endeavor that requires attention to feelings and motivations as well
as respect for rights and privileges.It is worth considering the observation that the
police presence is also a crowd,and the civilian crowd may respond accordingly.
Communication and trust are paramount.
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