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Legal Implications on the Use of Force During a Demonstration

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. POLICE RESPONSE. THE RESULT.

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Legal Implications on the Use of Force During a Demonstration

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  1. 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

  2. THE PROBLEMCompeting Constitutional Values

  3. THE PROBLEM

  4. POLICE RESPONSE

  5. POLICE RESPONSE

  6. THE RESULT

  7. THE RESULT

  8. THE RESULT

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

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

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

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

  13. “Shocks the Conscience”Rochin, Johnson v. Glick, Sacramento v. Lewis • The need for the application of the force • 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. • Shocks the conscience of a contemporary Judge.

  14. Objective ReasonablenessTerry, Garner,Graham • 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 case. • 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.

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

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

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

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

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

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

  21. First Amendment BackdropEssential Principles • Principle # 6 • 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)

  22. Passive Resistance and The Use of Force • 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. • Graham3 factor test : “and whether activelyresisting arrest or attempting to evade arrest by flight”

  23. Passive Protestor Dilemma • Lower Courts • Amnesty International v. Town of West Hartford, 361 F.3d 113 (2nd Cir. 2004) • Headwaters Forest Defense v. City of Humboldt, 240 F.3d 1185 (9th Cir. 2001). • Lamb v. City of Decatur, 947 F. Supp. 1261 (1996)

  24. Order to Disperse Dilemma • Lawful Order to Disperse Crucial • Statutory interpretation must be consistent with 1st Amendment Principles. • Example • NCGS 14-288.2 • NCGS 14-288.5 • Police definition of imminent threat vs language in Brandenburg

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

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

  27. Just when you think you have everything under control . . .

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