Brutality in Protest Policing
Karen Pita Loor examines the Fourth Amendment foundations for police use of force against protestors opposing the Dakota Access Pipeline in a paper published in the BU Law Review.
Photo by Vlad Tchompalov on Unsplash
Brutality in Protest Policing
Karen Pita Loor examines the Fourth Amendment foundations for police use of force against protestors opposing the Dakota Access Pipeline.
The following is excerpted from “Tear Gas + Water Hoses + Dispersal Orders: The Fourth Amendment Endorses Brutality in Protest Policing,” published in the May 2020 issue of the Boston University Law Review, which examines the legal determinants of police violence.
On November 20, 2016, members of the Oceti Šakowiŋ tribe and others stood on top of the Backwater Bridge together in prayer and protest in opposition to the construction of a 1172-mile-long pipeline that would transfer fuel from North Dakota to Illinois. The water protectors opposed the pipeline for both spiritual and environmental reasons. They were unarmed. Still, police descended upon the activists like a military unit—aboard armored vehicles and fully loaded with special impact munitions, tear gas, water cannons, and fire hoses—to clear them from the area. In the evening and early morning, law enforcement blasted activists with weapons and sprayed them with water for several hours in freezing temperatures. At the conclusion of this assault, more than two hundred water protectors were injured, including twenty-six who required hospitalization. Injuries ranged from loss of vision and broken bones to hypothermia.
This aggression was not aberrational or unique to indigenous protests of the Dakota Access Pipeline (DAPL). Just in the last five years, a sampling of protests by activists of color outraged by police killings of black men in Baltimore, Baton Rouge, and Ferguson prompted similarly violent, excessive, and militaristic law enforcement responses. Protests by whites are treated differently. For example, one may recall the restrained law enforcement response to white, antigovernment militiamen who seized federal lands and property in Nevada and Oregon. This disparate treatment is unfortunately in line with abusive and brutal policing in minority communities and with law enforcement officers’ predisposition to view people of color—and consequently activists of color—as threatening or dangerous. It is also nothing new. The American “system of free speech” has historically treated activists of color with hostility. “In the 1960s, minorities sat in, were arrested and convicted[,]… demonstrated, sang “We Shall Overcome,” and were arrested and convicted.” In his last speech before his assassination, Dr. Martin Luther King Jr. recalled confronting police water hoses and dogs in Birmingham, Alabama:
“And we just went on before the dogs and we would look at them; and we’d go on before the water hoses and we would look at it, and we’d just go on singing ‘Over my head I see freedom in the air.’ And then we would be thrown in the paddy wagons…”
The pervasive problem of violent protest policing of activists of color has the same root causes as generalized police violence in communities of color and deserves similar attention. It is a vital line of inquiry for critical race theorists. The right to express dissent unhampered by the fear of police retribution and violence, like the right to walk the streets unharmed by the government, is an element of equal membership in a democracy. It is not the right of a privileged group. However, the freedom to complain and express opposition is elusive for activists of color, and courts unfortunately reinforce this condition through their treatment of mass protests. As Dr. King noted wistfully in that same last speech:
“But somewhere I read of the freedom of assembly. Somewhere I read of the freedom of speech. Somewhere I read of the freedom of press. Somewhere I read that the greatness of America is the right to protest for right. And so just as I say, we aren’t going to let dogs or water hoses turn us around… We are going on.”
Nevertheless, minority protesters and their allies are still the more likely victims of militarized and violent protest policing. Such was the case at the Backwater Bridge in North Dakota.
The confrontation on Backwater Bridge is the subject of the Dundon v. Kirchmeier class action lawsuit. In their complaint, the plaintiffs—indigenous water protectors—alleged that police used excessive force in contravention of the Fourth and Fourteenth Amendments, chilled their First Amendment expression, and violated their equal protection rights. Although the matter is still pending, early in the case the district judge refused to enjoin police from using these less-than-lethal weapons against water protectors, and the Eighth Circuit affirmed. In ruling against the injunction on the police’s use of force, the district judge began by querying how the Fourth Amendment may apply to police action. This is because thirty years ago, in Graham v. Connor, the Supreme Court determined that excessive-force claims should proceed via the Fourth Amendment. This ruling has led to the evisceration of the overwhelming majority of excessive-force claims in one-on-one civilian-police encounters and to the evaluation of police brutality through a too-narrow and individualistic lens. The district judge’s treatment of the Fourth Amendment in Dundon led him to conclude that the plaintiffs were unlikely to succeed on the merits.
The Dundon case demonstrates how claims of excessive police force during protests are even more challenging for plaintiffs than when asserted during regular street interactions between police and civilians.
