U.S. Current Trend: Protest Rights Accountability and Reform
Addressing Violations of the Rights of Protesters at 2020 Black Lives Matter Demonstrations
LAST UPDATED: JUNE 2022
In the summer of 2020, protesters across the country took to the street to demonstrate against police violence against Black Americans. It was the largest protest movement in U.S. history and overwhelmingly non-violent. Police in cities across the country though, frequently violated the rights of protesters, journalists, and others through aggressive tactics. For example, in over 100 cities law enforcement used less lethal weapons like tear gas and rubber bullets against protesters, leading to numerous injuries, including at least 115 people who were shot in the head.
In the approximately two years since the outbreak of Black Lives Matter protests in 2020, activists, policymakers, and protesters themselves have taken action to address these rights violations, including through litigation, policy changes, and new legislation. These measures have often been partial and imperfect, but represent significant steps that can be taken toward deterring future violations and improving the policing of protests.
Litigation Against Law Enforcement and Other Authorities
Litigation has been a common tool used by impacted demonstrators, activists, and others to seek accountability and reform for protest rights violations.
EXCESSIVE FORCE BY POLICE
According to the University of Michigan’s Civil Rights Litigation Clearinghouse there have been more than 40 cases brought related to police violence during Black Lives Matter demonstrations in 2020. Litigation not infrequently resulted in protesters receiving monetary compensation. For example:
- A federal jury awarded $14 million in March 2022 to protesters in Denver, CO, hit by police with kinetic impact projectiles, after the claimants argued law enforcement had used indiscriminate force against them.
- The city of Austin, TX, in February 2022 agreed to a $10 million settlement to compensate two protesters who were injured when police fired bean bags and foam bullets at demonstrators from the top of an interstate bridge.
- The city of Columbus, OH, settled a federal lawsuit in December 2021 for $5.75 million brought by nonviolent protesters who were injured, including suffering broken bones, by police who fired wooden pellets and tear gas canisters into crowds of demonstrators.
- The city of Santa Rosa, CA, paid $1.9 million to settle a lawsuit brought by protesters who were struck and injured by police firing less lethal projectiles.
Litigation also resulted in changes to law enforcement practices in policing protests. For example:
- In 2022, the Justice Department partially settled claims in four civil suits arising out of federal law enforcement violently dispersing protesters at Lafayette Park across from the White House in June 2020. The Park Police agreed to follow new rules for policing protests, including issuing audible warnings before dispersing a crowd and wearing clearly visible identification.
- In June 2020, a federal judge blocked law enforcement in Seattle, WA, from using pepper spray, tear gas, or any other force against peaceful protesters. The judge found police had used force indiscriminately against protesters, indicating that their actions were motivated in part because they disagreed with the speech of the protesters.
- In Indianapolis, IN, a settlement in October 2020 required the Indianapolis police to only use “reasonable and proportionate” force against protesters, limit their use of tear gas and other less lethal weapons, and issue audible warnings before using such weapons.
- In Portland, OR, a federal judge temporarily banned the police from using tear gas as a crowd control measure and limited the use of other less lethal weapons. A later order required law enforcement to undergo crowd control training and to remove a particular officer from crowd control events pending an internal investigation.
Criminal charges have also been brought against some law enforcement officers for their unlawful conduct towards protesters. For example:
- In Austin, TX, 19 police officers were indicted in February 2022 for using excessive force against Black Lives Matter protesters.
- 3 officers in Columbus, OH, in June 2021 were prosecuted for assault, dereliction of duty, and other misconduct against demonstrators.
- In Dallas, TX, 3 officers were indicted in May 2022 for assault and other charges against protesters.
Many of the above cases, as well as others involving excessive force that arose out of the Black Lives Matter protests of 2020, are still ongoing and are likely to result in judgments or settlements in the future.
LAW ENFORCEMENT’S TARGETING OF JOURNALISTS AND OTHER INDEPENDENT ACTORS
In several cities, law enforcement was criticized for using force against journalists, legal observers, and medics. For example:
- After litigants argued that the Portland, OR, police and federal law enforcement were targeting, harassing, and attacking journalists and other observers at protests, a federal judge temporarily prohibited law enforcement from arresting a reporter unless they had suspicion they committed a crime and made clear that orders to disperse did not apply to journalists and observers who signaled they were part of a protected class.
- A group of journalists received an $825,000 settlement from the Minnesota State Patrol after they were attacked during the George Floyd Protests.
DEPLOYMENT OF FEDERAL LAW ENFORCEMENT
In July 2020, President Trump deployed federal law enforcement to Portland, OR, and other select cities. This surge in federal law enforcement was heavily criticized, including by those who claimed that it violated federalism guarantees in the U.S. Constitution and that aggressive tactics by federal authorities, including detaining demonstrators in Portland using an unmarked van, violated protesters’ constitutional rights.
A federal judge in Portland, OR, temporarily blocked the federal government from engaging in crowd control further than an extended city block around the federal courthouse. After a number of lawsuits by activist groups and others, the federal government withdrew its surge of federal law enforcement. This drawdown of federal law enforcement in combination with a broader change in the federal government’s policy towards protesters after the election of President Joe Biden made many of these lawsuits moot.
IMPOSITION OF RESTRICTIVE CURFEWS
Concerned about the possibility of violence, many cities during the 2020 Black Lives Matter protests imposed curfews. These curfews disrupted demonstrations and led to the arrest of nonviolent protesters who violated curfew orders. Rights groups and other affected parties challenged these curfews. For example:
- In Los Angeles activists brought a lawsuit challenging a multi-day curfew in June 2020 that they claimed was aimed at stifling speech. Shortly after the lawsuit was brought the curfew was lifted.
- County judges in Cincinnati, Ohio, dismissed charges against dozens of protesters charged with violating a curfew in 2020, finding that the curfew was unconstitutionally vague.
- After a number of high-profile activist organizations threatened to sue, New York City lifted its curfew that it imposed during the Black Lives Matter protests in June 2020.
LAW ENFORCEMENT’S SURVEILLANCE OF PROTESTERS
Black Lives Matter protesters faced widespread and systematic surveillance by law enforcement. Activists have attempted to gather more information about police surveillance and challenge its uses. For example:
- A state judge found that Portland law enforcement livestreaming protesters online, which opened them up to doxing and harassment, violated Oregon law.
- Rights organizations sued law enforcement in New York City and Washington D.C. to compel them to release more public records on how they surveilled Black Lives Matter protesters on the streets and online.
OTHER TYPES OF ACCOUNTABILITY
Activists and policymakers have attempted to achieve accountability and reform not just through the courts, but also through disciplinary procedures for officers, changes in policy, and new legislation.
DISCIPLINING OFFICER MISCONDUCT
After complaints brought by protesters, activists, and others, some cities disciplined law enforcement who were involved in officer misconduct during demonstrations. For example:
- The police chief in Oakland, CA, took 33 disciplinary actions in June 2021 against officers who had fired tear gas at protesters.
- As of March 2022, 10 New York City Police officers had been disciplined for misconduct during the Black Lives Matter protests in 2020, with a government watchdog finding in May 2022 that over 100 others should also face discipline.
- In Minneapolis, MN, two officers were disciplined for misconduct against protesters.
INVESTIGATIONS OF LAW ENFORCEMENT FAILINGS AND RECOMMENDED POLICY CHANGES
In the wake of widespread public outcry about law enforcement’s handling of the Black Lives Matter protests in 2020, many cities had outside investigators, watchdogs, and consultants investigate and issue findings on law enforcement’s failures in policing the demonstrations. These cities included New York, Los Angeles, Seattle, Indianapolis, Raleigh, Madison, and many others. These reports often found that officers behaved unnecessarily aggressively towards protesters thus helping spark violence, including by wearing riot gear, indiscriminately firing less lethal weapons into crowds, and failing to engage in de-escalation tactics. Common recommendations included improved training for law enforcement, not surrounding (or “kettling”) protesters, improved internal planning and communication, new policies for the use of less lethal weapons, and better community outreach.
While the impact of these investigations has varied, in some cities it has led to reform. For example, in Oakland, CA, multiple investigations led to the eventual disciplining of officers who had inappropriately fired tear gas at protesters and changes in policy to more strictly limit the use of tear gas.
The federal government has also taken steps to review its conduct and make recommendations for law enforcement across the country. For example, a GAO report found that six federal agencies used facial recognition software to identify protesters during the Black Lives Matter demonstrations of 2020, and an Inspector General report investigated the clearing of Lafayette Park in front of the White House on June 1, 2020. The Justice Department’s Office of Community Oriented Policing Services (COPS) released guidelines in September 2022 for how law enforcement should respond to protests, including recommendations for reducing confrontations with and arrests of demonstrators.
NEW LAWS ON POLICING PROTESTS
At the initiative of activists and proactive lawmakers, many states and localities also enacted new laws to better protect demonstrators (see ICNL’sReforms Introduced to Protect the Freedom of Assembly). For instance, at least 7 states and over a dozen cities enacted legislation that would restrict the use of less lethal weapons at protests, and several cities enacted legislation that increases community control over police surveillance, including against protesters. For example:
- California enacted legislation in 2021 that allowed police to only use kinetic impact projectiles and chemical agents to disperse an assembly if a number of criteria are met, including the failure of de-escalation tactics, repeated audible warnings, and an attempt to target those engaged in violence. Law enforcement that does disperse an assembly using these weapons must show in a report to the California Justice Department that it complied with all criteria laid out in the Act.
- Washington DC enacted legislation in 2020 that banned police from using less lethal weapons to disperse any First Amendment-protected assembly and the types of military equipment the police could procure from the military.
- New York City enacted legislation in 2020 that requires the police to issue an impact and use report for any surveillance technologies it uses that is then open to public comment.
The Long Road Towards Accountability and Reform
These attempts to create accountability and spur reform in the policing of protests are incomplete and have varied considerably by city and state. For example, as Propublica has documented, cities have varied markedly in disciplining officers who engaged in misconduct against protesters with many failing to discipline such officers at all. Recommendations issued by investigators to improve law enforcement policies for policing demonstrations have often been ignored. And while in some states federal courts have quickly intervened against law enforcement abuses against protesters, in others where there is also a seeming record of violations they have not acted at all.
Still, whether it is litigation, disciplining officers, policy reform, or new laws for policing protests, these measures are significant ways that activists, policymakers, and others can potentially create accountability for the violations of protesters’ rights and reform the policing of demonstrations. Taken together, they represent a potential toolkit of options for accountability and reform for those working to better protect the freedom of peaceful assembly.