Policing, Protestors, and Discretion

Introduction I. Discretion in Enforcement II. Looking Beyond Formal Law: Process and Community A. Procedural Justice B. Community Policing III. Discretion, Police, and Protesters A. Rules of Engagement: Communication and Transparency B. Neutrality C. Culture Conclusion INTRODUCTION On September 17, 2011, protestors descended upon New York City's Financial District, announcing that they were occupying Wall Street to call attention to the country's growing income disparities and other injustices. (1) The first three reported arrests were of protestors who were accused of wearing masks in public. (2) Another woman was arrested on graffiti charges after drawing on the sidewalk with chalk. (3) As participants marched north toward Union Square one week after the Occupy Wall Street ("Occupy") protests began, tension between police and protestors escalated with approximately eighty arrests and the use of pepper spray by police officers. (4) Protestors posted video footage of the arrests on Facebook, Twitter, and other social networking sites, calling attention to a growing movement. (5) By winter of 2012, Occupy had spread to more than one hundred cities across the country, and clashes between protestors and police clad in riot gear became familiar. (6) At a party the following spring, a friend of mine who is a New York Police Department (NYPD) detective told me that the media were speculating that the NYPD had acted unlawfully by checking whether participants in the Occupy Wall Street movement were subject to any outstanding arrest warrants. Because I teach Criminal Procedure, I immediately thought through the Fourth Amendment analysis. Neither inquiring about a person's identity nor checking a database for warrants is itself a restraint on liberty or invasion of privacy, and therefore such investigations need not be justified. (7) Even if the warrant check occurred after a seizure, the seizure would be lawful as long as an objective justification existed; an individual officer's subjective desire to use the seizure as a pretext to determine the person's identity and the presence of any outstanding warrants would not affect the lawfulness of the seizure. (8) However, I then considered the question through the lens of the First Amendment and Equal Protection. Critics, I explained, would argue that a check for warrants, if based solely on a person's participation in a protest, discriminates on the basis of the exercise of a fundamental right. (9) I might have forgotten about the brief conversation with my friend if I hadn't watched three days earlier as uniformed officers descended upon my neighborhood in anticipation of an Occupy march to Union Square Park. Marked patrol vehicles lined both sides of Fourteenth Street. Officers stood side to side, legs spread in a triangle stance. From their body language, I gathered that they were showing their power, preparing for confrontation, although no protest crowds had yet arrived. I assumed at the time that if I construed the image in that light, protestors would as well. That protest, which Occupy supporters later called the "May Day Siege by NYPD," (10) ended with the arrests of at least thirty demonstrators and "occasionally bloody clashes" between police and protestors. (11) On further reflection, I realized that I had missed an opportunity to answer my detective-friend's question with another question: Why? Even if the law permits warrant checks, why use an Occupy protest as an opportunity for mass warrant checks any more than the NYPD would take the same action at an afternoon street fair or outdoor concert? Fast forward two months. I was in Portland, Oregon, where I used to be a prosecutor. As I drove past City Hall, I noticed what appeared to be an extensive makeshift campsite outside. But in addition to the sleeping bags and blankets, I saw handmade signs. When I saw some of my local friends later in the week, I asked them about the scene. …