Guidelines for Policing Post-Election Protests in the US

Ensuring All Voices are Heard

Protests have been central to U.S. history. From expanding voting rights for women and people of color to advancing labor rights and environmental standards, demonstrations have strengthened our democracy and ensured that different voices are heard.

Authorities have a positive obligation to facilitate protests and protect people peacefully speaking out against injustice and demanding change. Unfortunately, they have not always met this responsibility. In the face of a potentially contested 2020 election, there are concerns that authorities will infringe our First Amendment rights.

Below are guidelines that government should follow to ensure all our voices are heard:

'I Voted' sticker spool on top of a ballot envelope. Stickers have an American flag on them and are in English and Spanish. (GPA PHOTO ARCHIVE/Flickr)
Law enforcement should not disperse individuals who peacefully assemble, including those who come together spontaneously

We have a constitutional right to gather together to make our voices heard. However, there is a history of law enforcement declaring assemblies unlawful and arresting protest participants even when required standards are not met.

Individuals can spontaneously come together and protest in a “traditional public forum,” like streets, sidewalks, or parks, in response to breaking news without having to obtain a permit, and should not be dispersed because they lack a permit.

Police cannot break up a protest as unlawful unless there is a clear and present danger to public safety, such as violence that cannot be addressed through more proportionate responses like targeted arrests. Isolated incidents of violence are not grounds for dispersing an assembly.

If there is a dispersal order, police must provide a reasonable opportunity for people to comply, including a clear exit path. Police should limit any dispersal order to the smallest geographic area and time period possible. Assemblies should only be declared unlawful by a commanding officer who has been trained in the requirements for making this determination.

Authorities have abused anti-riot acts, including to declare assemblies unlawful riots and arrest peaceful protesters en masse. Authorities should not arrest protesters for rioting unless they are directly and specifically involved in violence or property destruction.

Law enforcement should never respond to peaceful protesters with force, including with so-called less lethal weapons.

We have a right to protest peacefully without being endangered by law enforcement, including at unpermitted demonstrations. Many law enforcement agencies have been criticized for their excessive, and at times indiscriminate, use of force during protests for racial justice in 2020.

In order to keep all of us safe, law enforcement should always first try to de-escalate situations that may result in violence. In rare situations when they do use force, they must first exhaust all non-violent means and, if possible, provide a warning. Any force they do use must be the least possible in proportion to the situation and used only against those engaged in or threatening violence. Force that can cause injury should never be used against individuals who are passively resisting.

So-called “less lethal” weapons, like rubber bullets and tear gas, can cause serious injury and even death. Police should be rigorously trained in the use of these weapons and only use them as a last result in response to violence. These weapons should never be used indiscriminately and should first require an order and opportunity to disperse. Certain weapons, like kinetic impact projectiles, are too dangerous and indiscriminate to ever be used for crowd control purposes.

Law enforcement should be required to publicly report on any use of force during a protest, including describing why de-escalation tactics failed.

Authorities should not silence peaceful protesters with curfew orders.

People coming together nationwide in 2020 to peacefully demonstrate for racial justice faced curfew orders in numerous cities and counties. However, curfew orders often lead to greater confrontations with law enforcement, and risk escalating rather than alleviating tensions. They also encourage abuse by law enforcement, giving officers discretion to pick and choose which people to detain or arrest for violating the curfew. Historically, the selective enforcement power of curfews has disproportionately harmed communities of color.

Curfews are not an appropriate or lawful response to peaceful protests. In the exceptional situations where they are employed, they must be limited to specific geographic areas where there is an actual, imminent threat of violence or harm—not, for instance, entire cities. Authorities cannot use curfews to prohibit protests on the grounds that earlier protests, or protests in other locations, involved violence.

If used at all, curfews should be limited to the shortest duration possible to address the actual, imminent threat of violence, and not issued for an indefinite period. Authorities issuing a curfew must give the public in areas covered by the curfew clear instructions about the curfew’s scope and adequate time to comply. They should provide alternative locations for individuals to continue to assemble and express themselves without the threat of arrest.

Assemblies should be policed in a community-centered manner.

Federal law enforcement officers and members of the National Guard were widely deployed in response to protests for racial justice in the summer of 2020. Officers from federal agencies such as the Department of Homeland Security (including from Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE)) and U.S. Marshalls were extensively criticized for their tactics, including using excessive force and grabbing protesters off the street using unmarked vans. The National Guard was also criticized for aggressive tactics, including flying military helicopters close to the ground to intimidate protesters in Washington DC.

Local authorities, as opposed to federal agencies or the National Guard, should have the primary responsibility for planning, coordinating, and implementing the law enforcement response to assemblies. Law enforcement officers responsible for safeguarding peaceful assemblies should be responsive and accountable to the community where they are deployed. Ideally, they should also have knowledge of and relationships in that community. Law enforcement that police assemblies should have clear command structures to help ensure proper accountability.

Peaceful protesters should be able to identify the authorities who are responsible for protecting and enabling their rights. All authorities that are used in the context of protests and demonstrations, whether local or from outside the community, should visibly display identifying information, including a name or badge number and their respective agency or unit.

Only law enforcement officials who have been trained in safeguarding peaceful assemblies should be tasked with doing so. Of paramount importance, law enforcement responses to protests should not be politized or militarized.

Authorities should take action against unauthorized persons engaging in militia-type activity at protests.

All 50 states prohibit private, unauthorized militias and military units from engaging in activities reserved for the state militia, including law enforcement activities. There have been reports of armed groups usurping law enforcement activities and law enforcement even coordinating with armed militias at protests. Law enforcement should be trained to be able to identify vigilantism and militia activity and take appropriate action against it. For more on specific state laws restricting militia activity visit Georgetown’s Institute for Constitutional Advocacy and Protection.

For additional information, contact Nick Robinson (nrobinson@icnl.org) or Elly Page (epage@icnl.org).