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Crowd Control & Public
Demonstrations |
Legal Advisor
Boston Police
Department
One Schroeder
Plaza
Boston, MA 02120
(617) 343-4550
October 25, 2003
Municipalities must have a policy governing the
permitting of public demonstrations
A municipality is liable for any unconstitutional policy or practice it issues or implements. It is important, therefore, that local governments establish permitting procedures to regulate the use of the public space.
What does the permit policy need to contain in order to
be constitutional?
Public streets and sidewalks occupy a special position in terms of First Amendment protection, U S v. Grace, 461 U.S. 171 (1983), and the governments right to restrict those activities is very limited.
However, the courts recognize that regulating the competing demands for the use of public space means local governments must enact time, place and manner restrictions, so that speech is not lost in the excesses of anarchy. Cox v. New Hampshire, 312 U.S. 569 (1941)
Regulations must be :
1. Content neutral,
2. Narrowly tailored to serve significant governmental interest i.e., coordinate multiple uses of limited space, to assure preservation of facilities, prevent uses that are dangerous, unlawful or impermissible under other content- neutral restrictions, and to assure financial accountability for damage to public property, and
3. Leave open ample alternatives for communication. Forsyth County v. Nationalist Movement, 505 U.S. 123 (1982). Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).
An example of a regulatory scheme (governing the use of a public park) that has been approved by the Supreme Court is Thomas v. Chicago Park District, 534 U.S. 316 (2002):
1. Allows denial when application is incomplete, contains false information, damage previously was caused by applicant and has not been compensated, the intended use would be dangerous, or applicant has violated terms of a prior permit;
2. Must process permit within a time specific period so disappointed applicant has fair chance to challenge;
3. First come, first served ensures that permitting authority is not examining identity of speaker;
4. Waiver of application requirements in some instances does not render regulation unconstitutional. If inadequacies in the application do not cause the harm sought to be avoided, waiver of the requirements would enhance, rather than restrict, speech and therefore is not offensive to the First Amendment.
Adequate, alternative means of communicating the message must be provided.
If a
local government does not approve a request for a permit because of conflicts
with the time, place and manner restrictions in the permit scheme, it should
work with the requestor to craft restrictions on the event that would bring the
event into conformity with the regulation.
See Million
Youth March v. Safir, 155 F.3d 124 (2nd Cir. 1998) (noting
that it was appropriate for the District Court to craft restrictions on the
length and duration of the event to meet local concerns).
But municipalities should be careful when changing the place or time of the event would substantially impair the expression. See Nationalist Movement v. City of Boston, 12 F.Supp.2d 182 (D.Mass.1998), holding that City violated rights of [an activist*] group when it denied permit to march at a high school that was the subject of integrated schools busing controversy and offered City Hall Plaza as an alternative. The location of the proposed march was integral to the message that the group was trying to convey.
May permits be denied based upon fears of violence?
It depends, but in order to successfully deny or alter a request for a permit to march or demonstrate, the government must articulate specific and non-speculative concerns.
Public safety is a significant governmental interest and a group that proposes activity that would be a violation of the laws may be denied a permit on that basis. Likewise, if the group itself committed acts of violence in the past, the Supreme Courts decision in Thomas suggests that denial of a permit on that ground may withstand scrutiny (although one may doubt that an instance of violence in the past can be the basis for a permanent prohibition).
Even when public safety is at stake, the government must choose a narrowly tailored response. Ward v. Rock Against Racism, 491 U.S. 781 (1989). While narrowly tailored does not require that the least restrictive means must be used, the government must not impose a restriction that is substantially broader than is necessary.
Anticipated violence by counter-demonstrators and not the marchers themselves cannot be the basis for a permit denial, or for imposition of restrictions or costs on the group seeking to demonstrate. See Forsyth County v. Nationalist Movement, where the Supreme Court held that listeners response is not a content-neutral basis for regulation. Allowing a hostile crowd to determine when and how a group may demonstrate would amount to allowing a hecklers veto to silence speech.
Neither may the government impose restrictions based upon the mere speculation that violence may occur. Bay Area Peace Navy v. U.S., 914 F.2d 1224 (9th Cir. 1990) (in a case where the demonstrators were banned from approaching within 25 feet of pier containing Navy dignitaries and invited guests; noting that no information suggested demonstrators would engage in violence and lack of evidence showing that distance was necessary to neutralize potential violence).
The courts have not yet developed a consistent body of law on this issue post-9/11, but one may reasonably assume that law enforcement concerns of terrorism will likely be given greater credence than in past years. The Second Circuit upheld the denial of a permit to march at the UN in advance of the US involvement in hostility with Iraq, where the permit seekers were unable to provide information regarding number of participants or the identities of peacekeepers. The City articulated doubts about its ability to adequately protect the event, and offered instead to allow a stationary rally at a fixed location. The Appeals Court emphasized that its decision was based, in part, on the unusual circumstances presented during a time of war. See United for Peace and Justice v. City of New York, 323 F.3d 175 (2nd Cir. 2003).
What should the local government response be to unpermitted demonstrations?
Since time, place and manner restrictions
may be imposed to regulate the use of public space, it is lawful to order a
group to disburse or risk arrest for occupying a public way if they have not
first sought a permit to do so.
However, local governments must be mindful that if they choose to
establish a no-tolerance policy regarding such spontaneous or un-permitted
demonstrations, it must do so on a content-neutral basis. Selective prosecution of groups would be
violative of the First Amendment as content-based enforcement of the law. See Thomas v. Chicago Park District,
supra, noting that if evidence demonstrated uneven application of the
permit requirement, a First Amendment claim could lie.
Crowd Control issues
Crimes against the person:
Assault and resistance
Restriction or obstruction of public employee in performance of duties
False report of bomb
Battery
Crimes against the peace:
Wearing mask or disguise for unlawful purpose
False report of bomb
Use or preparation of noxious substance
Disturbance of public meeting
Incitement to riot
Rout and unlawful assembly
Authority of public officer to declare and close disaster area;
Incitement to riot
Refusal to disburse
Use of deadly weapon
Use of laser scope
Willful and malicious obstruction of thoroughfares
Crimes against property:
Arson
Throwing or placement of dangerous substance on highway
Destruction of signposts, traffic signals
Vandalism
Intentional harm of police dog or horse
Trespass on land
Obstruction or interference with business operators
Loitering
Possession of weapons:
Switchblades
Deadly weapons
Concealed weapons
1.
Establish a training curriculum
Be aware that many younger officers do not have experience with large scale, volatile events. Emphasize realistic training to give them experience with hostile crowds. Train supervisors to recognize stress responses and plan for relief of front line officers.
2.
Establish a force continuum that is event specific
Explore feasibility of
less-lethal weaponry (pepper ball shotgun, Taser , super sock shotgun). Determine whether
chemical munitions will be used.
3.
Establish relationship with demonstrator / advocacy
groups
Sometimes the best way to avoid conflict is to establish candid relationships with advocacy groups either as direct representatives of demonstrators, or as mediators with demonstrators. Establish ground rules and adhere to commitments made. If restrictions or changes to the demonstration plan are necessary, come up with a menu of options.
4.
Have a mass arrest policy
If you anticipate a huge event, make sure other partners are well informed (courts, sheriff/local jail) and are prepared to handle large arrest numbers. Assign sufficient transport vehicles to event. Review booking procedures to streamline time spent per prisoner.
5.
Limit arrest powers to supervisors
Identify supervisors who will serve as arresting officers to ensure consistency of charges, to avoid pulling line officers into arrest process, to ensure adequacy of arrest reports.
6.
Establish a media plan
Keep spokespeople informed of disruptions or unusual occurrences to mitigate press coverage/get official message out to appropriate outlets.
7.
Prepare for anticipatory litigation
If you anticipate a challenge to a large scale event (injunction, TRO) make sure there is a brief bank containing the black letter law for your state/federal jurisdiction, and throughout the planning process, take note of decision makers (and if possible, draft affidavits).
* The word activist was
substituted by AELE, because counsel for the group objected to their description
in the original document.