The demonstrations of the past year, including the occupy movements, flash mobs, and sports championships, clearly put Law Enforcement agencies on notice that we have an obligation to prepare our departments for a proper response to these events. Preparation to address these crowds is best achieved through policy, training, and application of how to manage crowds while protecting First and Fourth Amendment rights.
Lessons learned from the Vietnam protests, race riots, and political demonstrations of the past have been forgotten. It is time to dust off the policy, find the long batons, and take the officers back out to the parking lot to work on linear/wedge formations. Law Enforcement must carefully balance the First and Fourth Amendment Rights of citizens with the protection of public and property. Not all crowd control situations; however, involve unlawful behavior. It should be the mission of Law Enforcement to protect lawful activity while identifying and addressing unlawful behavior.
When drafting policies and conducting training to govern crowd management, multiple aspects must be considered and addressed to enable Law Enforcement to provide an effective response. These aspects include: knowledge of legal standards applicable to First Amendment conduct, proper use of force, and effective information gathering. As in all high liability areas, proper policy guidance, effective training, detailed planning, and effective leadership are necessary. Departments that develop a foundation operational plan for their jurisdictions will have the opportunity to examine logistics and assign responsibilities prior to an actual event.
One area departments are encouraged to examine in their policies and operational plans is the process and procedure for declaring an unlawful assembly. The definition of an unlawful assembly is usually covered by state statute, and the manner in which departments must declare an unlawful assembly is clearly identified in governing law.
The decision to declare a crowd unlawful must be based upon reasonable and articulable facts. Dispersal orders should be clear and loud, given multiple times, and the crowd provided with clear departure pathways. Departments should record the process of declaring an unlawful assembly and the manner in which the officers order and enforce crowd dispersal.
Departments can start by understanding and incorporating guidelines, such as those recommended by the Department of Justice. The development of a comprehensive policy that provides detailed protocol and clear guidance to officers is essential.
- Officer and Agency Response
- Planning for Response (Incident Commander)
- Authority for the Deployment of Resources
- Conducting Crowd Control and Management
- Response to Crowd Situations
- Declaring an Unlawful Assembly
- Proper Use of Approved Tactics and Weapons
Policies should also contain a section regarding prohibited weapons for crowd control, a protocol for Mass Arrest Procedures, and sections regarding videotaping and photographic recording of events, as well as a mandated reporting requirement, including supplemental reports.
Issues also arise when mutual aid agreements are brought into play. What happens when the standards of one agency differ from the other? Whose policy is the guiding factor? If your agency, for example, precludes a specific use of force that a responding agency does not, can that department use that method? These are questions that departments must ask when drafting or revising their policies.
Training officers on the agency policy is always important to protect agencies and officers from liability. Most officers are unaware what the basis of a First Amendment violation is, or how their actions can cause one. Training must also focus on the fact that officer discipline and restraint is an essential component in successfully managing crowds. Furthermore, crowd management training should include a review of department policy and procedures, arrest and control techniques, use of force standards, mass arrests, and less-lethal application.
Departments should also have an operational plan in place for incident documentation, which is an important aid when addressing complaints and preparing civil litigation defense. Incident documentation includes, audio, video, photography, reports, dispatch tapes, use of force reports, arrest reports, and after action reports.
The future is clear that protesting and demonstrations will continue, and flash mobs will increase. Advances in technology have provided protest and rally participants with tools to spread information to a greater number of individuals in a short period of time, resulting in larger, more informed crowds. Waiting to develop a plan of action for a proper response until after you receive the call that a crowd has gathered will clearly leave your officers and agency exposed.
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Eric Daigle, Attorney and Consultant
A legal advisor to police departments in the areas of legal liability, internal affairs, discipline, policy drafting, employment issues, use of force, laws of arrest, and search and seizure, Eric P. Daigle practices civil litigation in federal and state courts, with an emphasis on municipalities and public officials. Daigle maintains his Connecticut Police certification, having previously served as a detective with the Connecticut State Police.