Why Properly Policing a Movement Matters: A Response to Alafair Burke's Policing, Protestors, and Discretion

Article excerpt

Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. (1)

Introduction
I.   Police Use of Force and Fourth Amendment
     "Reasonableness"
II.  Protestors' Expressive Conduct and the First Amendment
III. How Police "See" What Occupy Is Saying
Conclusion

INTRODUCTION

On September 17, 2011, a group of protesters set up camp in New York City's privately-owned Zuccotti Park to protest America's political and financial systems, the excesses of capitalism, and widening chasm between the very richest Americans, "The 1%," and the rest of the United States, "The 99%." (2) The protest not only caught the attention of millions across the country, but it also spread quickly to other American cities (3) and across the globe. (4) Occupy was lauded as an organic, diverse, grassroots, populist, (5) anarchist, (6) self-governing, consensus-based, (7) direct-action mini-utopian (8) collective of collectives. Not since the Great Depression has a group or individual captured the division in the American economic classes so vividly. Many repeated its pithy rallying cry--"We are The 99%!"--including celebrities, billionaire moguls, renowned musicians, award-winning actors, entertainment tastemakers, and other members of The 1%. (9)

One year later, however, Occupy seems nearly irrelevant. (10) Its protests are no longer headlining newspapers or cable news features. (11) Instead, on its first "Occuversary," (12) Occupy "seems to have lost nearly of all its steam," (13) disappeared, (14) and stalled. It is as if the movement's initial intensity was inversely proportionate to its ultimate legacy.

Reports of Occupy's death may be greatly exaggerated. (15) Few, however, would dispute a grim prognosis. (16) For all of the various causes that many commentators have emphasized, (17) this Article submits that excessive use of force by the police remains one of the most significant, if not primary, causes of Occupy's precipitous decline. (18) Given that the Occupy demonstrations and their protesters were overwhelmingly non-violent, one might expect governmental response to have been muted and measured. It was not. When footage spread of University of California-Davis police Lieutenant John Pike pepper-spraying peacefully seated student protesters as if they were vermin, it shocked and outraged. (19)

It got worse. Jurisdictions deployed overwhelming police force to arrest Occupy protesters and close public fora--actions characterized by some as retaliatory--to prevent arrestees and their supporters from returning and recreating encampments. (20) Aggressive encounters, violent arrests, midnight raids, and phalanxes of officers in state-of-the-art riot gear triggered shock and alarm.

Much of the worst police abuses that were documented occurred in cities with some of the most professionally trained, sophisticated police forces. For example, members of the New York Police Department (NYPD) were condemned for their use of force and other questionable conduct (such as obstruction of the press, surveillance of peaceful political activity, and "kettling," or corralling and trapping protesters). (21) Similarly, the Oakland, California Police Department was swamped with over 1,000 use of force claims (22) and subjected to a 120-page commissioned report that criticized its "outdated, dangerous, and ineffective" policing of Occupy Oakland protestors. (23) The report included, inter alia, the compromised investigation of police use of force against Iraq war veteran and U. …