I don't think the police actions here will have any effect on voters, in contrast to what happened in Chicago in 1968.

Is it snark aimed at people who believe that smashing police car windows is expressive activity protected by the First Amendment?

Apparently yes, such people exist from how they responsed to the previous post.

Waldensian,

If you read the comment thread to the prior post, some commenters thought I was being quite unfair for not being sufficiently respectful of the First Amendment implications of the anarchists' plans to disrupt the convention.

If you read the comment thread to the prior post, some commenters thought I was being quite unfair for not being sufficiently respectful of the First Amendment implications of the anarchists' plans to disrupt the convention.

Ah. Well that's what I get for reading from the top down. So I take it this was tongue-in-cheek, and nobody actually claimed First Amendment protection for window breaking? That would be, like, totally stupid.

Karen,

I'm curious: If smashing a police car window isn't violently overreacting, how would you characterize it?

Also, do you have any links on what the persons who were arrested were doing before they were arrested? I looked for it, but could only find video after the police made the arrests.

[Deleted by OK on civility grounds.]

Orin,

I think you misunderstood the position many of us were taking. I don't remember a single comment in the other thread defending the right of the protestors to engage in this sort of illegal activity of violence. Rather, some of us were concerned about the implications of arresting these individuals before they had actually engaged in these acts. I think most people here agree the behavior described above ought not to be tolerated but some of us think that preemptive arrests on conspiracy charges for planned protests creates a danger of sliding towards the use of these charges to interfere or obstruct annoying but legal protests.

Disagreeing with police tactics to stop an activity does not indicate sympathy for the activity nor the belief that it should be allowed to occur unchecked.

----

As far as this actual behavior goes it continues to astound me how stupid and idiotic these people are. I mean putting aside the issue of whether these tactics are a justifiable means to achieve their ends no sane person who thought about it would conclude that this sort of anti-social behavior would achieve their goal. I mean being a dick about stopping the war just makes people hate you and taints your cause it doesn't convince anyone!

It's the tendency to engage in stupid emotional outlash that disabused me of any interest in participating in political activism at berkeley. I mean why the hell would you think that chaining yourself to things or delivering pot plants to the DEA in oakland (no one did that but it was suggested) is a good way to achieve your end!!

Sigh, it just goes to show you the power of tradition and group think.

TruePath,

Um, of course. I was just poking fun, obviously.

OrinKerr:

You'll note that I said "not the *only* ones violently overreacting". I was saying that the window-smashers *were* violently overreacting...and implying that so too were some of the cops.

The previous link linked back to the WaPo article, where Amy Goodman tells us what she was doing at the time of the arrest:

"I was down on the convention floor interviewing delegates when I heard that two of our producers had been arrested," said Goodman. "I ran down to Jackson and 7th Street, where the police had moved in."

Goodman said that when she ran up to find out what was going on, she was also arrested.

Don't know what the two producers did to get the police's attention--but by this account Amy was first interviewing delegates, then asking why they were hauling her producers away.

Something worth keeping in mind here. The "police" in both the case of the ABC reporter arrested in Denver, and in the case of the Democracy Now reporters are local police. It's tough to tie them directly to any sort of federal policy (or Bush agenda).

That said, I'm sure the RNC and DNC probably had some influence over the situation.

In Ms. Goodman's case I'm guessing the local law enforcement folks are going to be writing a check and/or dealing with a long drawn out lawsuit (and hopefully issuing an apology). The video of her arrest is online and there's no way what the police did was even remotely justified (or falls under the legal buffer afforded to law enforcement in the face of civil lawsuits).

Orin,

Sorry to miss you humor :-). I didn't see the tongue in check comment before I posted.

I don't normally edit out offensive parts of posts and leave the rest -- takes too much time. Although I will take that an an apology for being crude, and I accept your apology.

Eminently reasonable, and I do apologize.

Anyway, pepper spray and the like ain't deadly force. Indeed, it's not even a search or a seizure, so it could only come up as a due process issue.

I would think a projectile canister of tear gas, which are very rarely fatal, would still qualify as quasi-deadly force. Can the police fire rubber bullets at fleeing felony-suspects?

TruePath,

Of course -- no prob. I shouldn't have said "obviously" --maybe it wasn't so obvious.

I completely agree with you about the protests and where they are coming from, and also about how counterproductive they are. It reminds me of the World Bank protest here in DC around 2003 or so. The World Bank is a block from GW, so I went to the police line to watch. There were a bunch of white college-age kids protesting and trying to get the police standing to see the violence in the system. So they start talking to this cop, an African American guy in his 30s, trying to convince him that he should join them and overthrow the political order. The guy is dressed up in his police gear, and he very earnestly explains to them that he's just trying to earn a paycheck to feed his wife and kids and give them a decent life; that he's pulled himself up from his bootstraps and made a pretty good life for himself working to protect public safety; and that his only goal for the day was for the World Bank meeting to go on without anyone getting hurt. The kids were really blown away by this: It was like, so authentic. So they told the cop that they thought he was cool and they totally understood, and then they stood there sort of sheepishly, like they weren't quite sure what they were doing there. Classic.

From what I read, that tape is all there is of Goodman's arrest.

Great story about the WB protest.

Orin Kerr:

The videotape shows Amy Goodman taking a few steps and then a police officer starts telling her "sidewalk now." When she tries to talk to him, he has her arrested. Do you think that shows a reason for her to be arrested? Do you think that something happened the minute before to explain the arrest? What would that be?

According to the Washington Post, Donna Brazile was pepper sprayed while she was walking into the convention center. I guess the police were just trying to stop the riot.

joshers,

I'm curious: What difference does it make that she was holding a flower?

Re the "violence mars" headline, the results obtained were exactly those which were planned for; the "preemptive" arrests were intended to provoke those who might not have otherwise acted. The event would have been marred in the view of the planners if there had been no violence.

I will echo that Amy Goodman knew exactly what she was doing and achieved her goals.

I will echo that Amy Goodman knew exactly what she was doing and achieved her goals.

Who are you and what do you know?

Neurodoc,

I listen occasionally -- how can a law professor who loves jazz turn down a show called "Jazz and Justice"? The only way to appeal to me more would be if the show were titled, "Jazz, Justice, and Beer." But that would be almost too much.

Orin Kerr,

According to this interview by the SF Chronicle with Amy Goodman after her release (scroll down), she was arrested for "obstructing legal process -- interfering with peace officer." I'm not sure that's the same as disobeying a lawful order, but there is nothing on the video of her arrest that shows her interfering with anything the police officer was doing at the time. He was just standing there when she walked up to him.

Second, I don't know whether it was a lawful order to tell her to lie down on the sidewalk but I don't see any thing on the video that made it reasonable for him to order her to lie down on the sidewalk.

Third, as to what the context of the arrest was, she said in the interview that she wanted to talk to the commanding officer to get her producers released. That looks like what happened on the video of her arrest.

What True Path said. Professor Kerr continues to be flippant about the distinction between, say, the police breaking up the plans of a drug distribution wing on a showing of probable cause and the police breaking up a political protest by arresting people who plan to protest. The first does not implicate the First Amendment and is governed based on a probable cause standard; the latter implicates the First Amendment and is constitutional only if probable cause can be shown exclusive of any expressive activities or if the prior restraint test is met (i.e., strict or super-strict scrutiny).

Yes, that means that sometimes there's going to be violence before the police can act. That's the whole point. In the First Amendment arena, the police aren't allowed to use threats of violence as an excuse to round up political dissidents and stop a protest. Rather, in most cases, they have to wait until the violence occurs and then move in.

cvt, Goodman - by her own admission - was interfering with the police's ability to arrest her producers. In the midst of a riot, the police do not really have time to debate with every Tom-Dick-and-Harry about the merits of each arrest that they are making.

I would really like to know how the police critics on this board would propose that the police deal with a riot. A riot disrupts the peace, destroys property, and can cause injury and even deaths of innocent people. Therefore, it is important for the police to put down a riot. Some questionable arrests and the exposure of some innocent people to pepper spray are probably unavoidable and seem like a small price to pay to prevent a riot from getting out of control.

Dilan Esper, can you cite some on point case law in support of your contention that even if the police had good evidence that unlawful activity was being planned and organized, they would have to wait until the violent conduct was underway before trying to frustrate it? Or are you just expressing doubt that the police did indeed have reliable evidence there was serious planning and organizing to those ends before the arrests were made?

Well, no. But it's pretty fun to listen to mindless leftist cant sometimes.

Yes, and one can get as much of that as they want listening to Ms. Goodman and her Pacifica confreres. Little to engage with there intellectually, it is so utterly mindless. Now when I fear my blood pressure may be dropping too low, I turn to the less lunatic, far more malignant left for stimulation, like Alec Cockburn, a true piece of work (but without the jazz accompaniment).

It appears that not all of the protesters are nonviolent. Apparently, they have been throwing bags of cement from overpasses onto buses going to the convention, and surrounded a bus of Boy Scouts and rocked their bus back and forth. If the bags of cement hit the windows, there could be some casualties.

if a police officer issues a lawful order, and you refuse, and he issues it again, and you refuse again, and he uses force against you to get you to obey, and you push back against him and try to go back where you were, that is indeed generally going to be "obstructing legal process --- interfering with police officer."

Orin Kerr:
It depends on what the order was (ie, whether it was lawful). I admit, it hadn't occurred to me that he was just telling her to go back to the sidewalk. It looks to me like he was trying to push her down, but I see why you could interpret it differently.

Even the relatively staid law and order likes to have McCoy stretch his ethical/legal responsibilities because the situation is so important

y'know, i've mentioned several times what i refer to as "jack mccoy'ism" (note: it's not a complimentary term). as a law and order type myself, i DETEST jack mccoy's sanctimony and his constant attempt to lay blame even where none should be laid (at least criminally). jack mccoy frequently makes me ROOT FOR THE BAD GUY, and i'm not just talking about cases where the bad guy might be innocent, but cases where i KNOW he's guilty but I don't care because mccoy is so vile.

seriously. i love law and order (not the spinoffs, though). it's the ONLY drama teevee i watch. but i really cannot STAND his tactics or his mindset. he's the worst kind of prosecutor - a liberal, holier than thou, biased, sanctimonious, blame laying, ninny.

blech

Rule of thumb: In a near-riot situation, presume the order is lawful and obey it. There will be time later to coolly debate the fine points.

You mean like later in court after the 2004 RNC where hundreds of cases were thrown out and hundreds of thousands of dollars were paid to settle civil claims?

Maybe in four years, we'll all the details on this one too.

BTW, NYC's record, 1700+ dismissals out of 1800 arrested. That's some fine police work Lou.

that's not surprising. during WTO our goal was not to make winnable cases. our goal was to protect the innocents, the peaceful protestors, and property. arrests were (one of many) means to help achieve that goal.

arrest teams made arrests and moved on. were reports written right after the fact? nope. when you are one 18+ hours, and making a dozen or more arrests are the facts gonna blend together and make it next to impossible to right a good report on each one? hell ya. does it really matter?

in a riot situation, there are simply far more important considerations. do you pull a seattle PD and do what their watch commander did during the mardi gras riots and ORDER your police NOT to engage the crowd and make arrests but to stand on the corners and watch the rioting (yes, that's what the idiot manager ordered them to do)? well, you could do that. no arrests were made before christopher kime was murdered trying to save a girl in distress. that's FAR preferable ot making an arrest that couldn't later be proved in court beyond a reasonable doubt (note: sarcasm) because of the chaos of the riot.

do you stay off the streets and write your reports and make sure you took sufficient notes, while fellow officers are being overrun or do you get BACK INTO THE FRAY and say the screw the paperwork? i know the correct answer.

riots aren't pretty and the sad truth is that a fair # of innocents are gonna get hurt and/or peppersprayed. some are even going to get arrested and then the case will be later dismissed (oh NO!). that's reality.

rightly so, the courts are going to require chain of evidence, sufficient evidence, and all the other niceties to get a conviction. groovy. but that is far from the first order of business when you are quelling a riot, saving people and property from physical harm and working your hardest to get the instigators off the street before they cause more mayhem and bloodshed. i know that in WTO in seattle (and seattle compared very favorably to the aftermath in europe for WTO), there were some minor injuries, and no deaths despite the arrests, the pepper spraying, the cadres of cops and the intense rioting. iow, that's a good thing.

i can't speak for NYC but i know what happened in seattle. i witnesses scores of crimes where arrests were simply not possible, and several arrests where I never even submitted any paperwork despite the fact that i was one of many witnesses that could have helped but we simply didn't have the time. i have no idea who even wrote the reports or whatever.

unless you've been IN a riot, you simply don't understand. it's not pinochle.

i love law and order (not the spinoffs, though). it's the ONLY drama teevee i watch. but i really cannot STAND his tactics or his mindset. he's the worst kind of prosecutor - a liberal, holier than thou, biased, sanctimonious, blame laying, ninny.

I agree wholeheartedly but I think, I think (hope, wish, pray) that the effect is deliberate on the part of the show's producers.

Give them a whiff of the grape and move on, that will avoid all the arrest and other legal questions.

According to the Washington Post, Donna Brazile was pepper sprayed while she was walking into the convention center. I guess the police were just trying to stop the riot.

They were just afraid she would start talking and they'd have to listen to her.

Now that we mention anarchists I think it would be great if they had long curled mustaches, hurled spherical bombs with long fuses, and wore capes. That would be cool.

Comment of the day.

Paperwork for arrests isn't done for fun. It's done because the only way we have to assure that arrests are not abused, either deliberately or out of recklessness, is to have that paperwork. If 1700 out of 1800 arrests lack proof that the person arrested did something that deserved arresting, that means that the police have tried to bypass the safeguards against abusing arrests.

It's not just the paperwork. If the DA is going to prosecute, don't the arresting officers need to testify. Since officers are involved in several arrests during the day, post-riot prosecutions for every crime committed could tie up a large share of the police force for months.

arrest teams made arrests and moved on. were reports written right after the fact? nope. when you are one 18+ hours, and making a dozen or more arrests are the facts gonna blend together and make it next to impossible to right a good report on each one? hell ya. does it really matter?

Well, whit, according to both Federal and State courts, yes it does matter. As I said earlier, the settlements are at ~$500,000 and many of the suits still pend.

Unfortunately for your lesser-morally upright brothers in blue, at least 400 of those arrests were later shown be videotape evidence to be based on outright fabrications by the police. Which is, of course, the logical extension of your "clear the streets by any means" logic, even if it that's not the intent.

..$500,000 ? Cheap at twice the price. Hell, Seattle saved $300,000 by just giving the protesters what they wanted. That's what San francisco did during the Harvey Milk riots. Let it burn. It's cheaper than arresting them.
...Years or probably days from now, these Adam Henry's will be telling us they regret " not doing more " to stop the RNC. If I were the judge that poor Amy appears in front of, I'd dismiss in the interest of justice, but first I'd make her comb her hair in the interest of hygiene and public health. Me and Potter know obscenity when we see it.

...Pretty hard to cheapen the entire point below a feces coated brick in the face, Oren.

Don't forget, there were a number of arrests at the DNC.

Do a Google on "dnc police arrest" and "rnc police arrest".

Somehow, our police actions remind me of police actions in the PRC. I know, terribly misguided of me.

As for the "anarchist" smashing the police car window: How did AP know he was an anarchist? Maybe he was an agent provocateur, except our police don't do things like that. Still, I can't find in Google that anybody was arrested for vandalism. Just some reporters and a lot of protesters who had registered to demonstrate.

You know, in China citizens could apply to protest during the Olympics. But if you applied, you were arrested.

Why wasn't the vandal arrested?

It went far beyond mere property damage or even tossed feces-covered bricks. As was mentioned above and Gatewaypundit reported yesterday, anarchist thugs heaved heavy bags of cement off overpasses onto buses to the conference passing below; one hit the bus GP was riding on, though no one was injured fortunately. This is attempted murder.

In particular, I'd love to see cases saying that the police can't stop physical violence designed to interfere with speech

Professor, you are misreading Judge Wood's opinion and ignoring the other cases she cites.

In each case, arrests pursuant to a lawful arrest are subjected to the prior restraint test because they target expressive activity.

The point isn't that the police can never intervene; it's that simply having a lawful arrest warrant isn't enough when we are talking about arresting people to shut down a protest. They have to meet a higher threshold of proof because such arrests are a form of prior restraint.

It never fails to amaze me that those who feel that nude dancing, vandalism, and assoult are free speech often consider that discussing the candidates actual positions in public within 60 days of an ellection is not.

Toby:

For the record, I think that McCain-Feingold is unconstitutional.

And I don't think vandalism and assault are free speech (nude dancing should be protected, however); rather, the rules that make it difficult for the state to go after protesters on the ground that protests may turn violent are grounded in the fact that such actions have often been used to shut down legitimate protests. It's just like the New York Times v. Sullivan rule-- we protect some forms of libel and slander not because libel and slander themselves have value, but rather because libel and slander actions have been used to try and suppress critical discourse about public figures and issues of public concern.

Pretty hard to cheapen the entire point below a feces coated brick in the face, Oren.

Absolutely! This is why I think the police are quite backwards at arresting many and trying none (OK, the DA tries, but you get the idea). When you think about it, it's ridiculous that a real "black bandanna" anarchist type will serve the same "sentence" as a peaceful or mildly-disobedient protester. From an incentives point of view, there is little reason for a protester to slip from peaceful/mildly-disobedient to violence because there is basically no additional penalty.

Instead, how about getting very solid evidence against the most egregious rioters (e.g. have the police videotape a guy smashing a window and then swarm him), fill out the paper work, and make a felony riot charge stick (including whatever paperwork was necessary). Let the real troublemakers serve a few months in the pokey instead of rounding up 1800 people, 1400 of which are innocent, and having them all walk.

Such a policy would have the added benefit of being the most deterrent to future rioters and give them maximum incentive to remain within the bounds of peaceful expression. It would also be the most just -- punish the real violent ones that put all the peaceful ones at risk of violence (because, ultimately, the 5-10% most violent protesters are the ones that bring about the most police violence).

Dilan,

You seem unable or unwilling to distinguish two completely different concepts. The first is that arrests can in some circumstances violate the First Amendment. This is absolutely true. The second is that the First Amendment makes it unlawful to arrest someone who has committed an unlawful conspiracy to engage in a violent act designed to interfere with a third party's speech, on the ground that the government cannot interfere with such a conspiracy until the actual act has been committed. You are making the latter claim, and I am looking for cases on the latter; but every time I ask you for them, you pretend I am focused on the former and you express shock that I cannot recognize the former point.

What an remarkably frustrating interaction.

Dilan:

Thanks

Dilan Esper,

Your legal analysis is way, way off. But to add a last comment, there's a big difference between punishing someonw for their speech, like the Watts case, and arresting someone for the destruction of property that is against a political opponent. Under your theory, it's a prior restraint to arrest an Al Qaeda cell that has not actually carried out its attack. But I can't find any caselaw to support that view. And despite my requests, you have offered none.

"I'd love to get your thoughts on my 1:18 am comment."

Late to respond but I did watch the Goodman video and I would say of the cases I read about, I have the least sympathy for hers. But she was not the only one arrested. At least three others, including her two producers, were arrested and initially charged with various rioting charges. I suppose its possible that employees of public radio and the AP photographer decided to put down their mics and cameras and join the riot. More likely, they were rounded up while they were covering the riots and arrested and charged with no distinction being made that they were journalists covering the event.

Goodman's producers were charged with felony riot charges. Wouldn't such an arrest and charge be based on some credible evidence that a serious crime had been committed? Seems odd that police would make such an arrest and then release these people without any attempt to formally charge them? Several other journalists were arrested in the same incident although it hasn't been as widely reported:

http://www.fortmilltimes.com/124/story/276807.html

Simply labeling advocacy activities a "conspiracy to commit violence" does not create an exception to the First Amendment.

Calling joint activities to prepare for committing riot advocacy doesn't make them protected by the First Amendment.

The question is whether if you have protesters saying the equivalent of "if you give me an M-16, the first person in my sights will be LBJ", whether you can arrest them. And the Supreme Court has on any number of occasions held that the latter is protected speech. Labeling it a "conspiracy" doesn't remove the First Amendment problem; it simply ignores it.

The question is not whether talking about it makes it First Amendment protected behavior, since the people had the materials. It's whether actually giving the M-16 and taking it to a geographic point where the gun could be used is in fact conspiracy.

It is, and it isn't protected by the First Amendment.

For the record, I think that McCain-Feingold is unconstitutional.

At least we agree on something.

Yours, TDP, ml, msl, &pfpp

Calling joint activities to prepare for committing riot advocacy doesn't make them protected by the First Amendment.

Reading Eugene's post about crime-facilitating speech and the first amendment might disabuse you of that notion. . .