The right of the people to peaceably assemble, and to petition the Government for a redress of grievances.
— First Amendment, U.S. Constitution
“To peaceably assemble.”
Protest and Force: Mutually Exclusive. Protest is peaceable. When actions are not peaceable, they are no longer the actions of “protesters.” Where force begins, peace ends, and so does lawful protest. There thus is, as a matter of law, no such thing as non-peaceful protest.
Force need not be physical. Webster’s Universal Collegiate Dictionary (1997) has 31 meanings of force, covering physics, law, sports, in myriad contexts. Example five, law, reads, “unlawful violence committed against persons or property.” Example 21 reads, “to put or impose (something or someone) forcibly on or upon a person: to force one’s opinions on others.”
Black’s Law Dictionary (10th ed., 2014) devotes nearly two pages to various forms of force as defined in law. Pertinent to our subject, force is defined as “power, violence or pressure directed against a person or thing.” Three forms of force follow: actual, constructive, and deadly. “Actual” denotes physical force; “deadly” is defined as “violent action known to create a substantial risk of death or serious bodily harm.”
Where the rubber meets the road for our subject, so to speak, is the meaning of “constructive” force. Black’s Law Dictionary defines “constructive” as “legally imputed; existing by virtue of legal fiction though not existing in fact.” In other words, though not “actual” force, the law recognizes that a person’s will may be coerced psychologically.
Confessions obtained by actual physical force were held unconstitutional in Brown v. Mississippi (1936). The most famous Supreme Court opinion on psychological coercion was in Miranda v. Arizona (1966). The famous four warnings were mandated by the Court because it found custodial interrogation of a defendant, without counsel present, inherently psychologically coercive.
Which brings us to our 21st-century tale of three post-protest cities.
Minneapolis: Consensual Change. Ironically, the city that was the locus of the original protests and rioting, with 700 buildings damaged, destroyed, many by arson, Minneapolis has since been an exemplar of decision by popular local consent. The city council unanimously voted to abolish the police department and, within a year, replace it with a “community-led public safety system.” While police representatives have roundly condemned the idea, and warned that the criminal class will take advantage of the situation, the city has opted, consensually, to try the experiment. This is federalism in action: each state can go its own way, so long as it does not impinge upon federal prerogatives.
In a 2010 speech, the late associate justice Antonin Scalia told an audience, “A lot of stupid stuff is perfectly constitutional.” Minneapolis voters elected the mayor and city council. They will have an opportunity to try the new arrangement. Critics may well be right when they ask whether if you dial 911 at 2 a.m., you want a social worker to be sent to your home. If crime spikes significantly, voters will have a chance to reconsider at the next election. If, against all expectations of critics, their social-worker model succeeds, other states may well choose to follow. If it ends disastrously, the case for the traditional policing model will be reinforced.
Some might object: What if people die as a result of this change? Put simply: bad government costs lives all the time, even though such decisions may be constitutional. Think New York Gov. Andrew Cuomo’s catastrophic decision to send elderly COVID patients to nursing homes that were utterly unprepared to safely care for them and protect non-COVID patients already there. Thousands died unnecessarily. Or take Cuomo and New York City Mayor Bill de Blasio squabbling while New York City residents were subjected to nearly a week of looting, arson, and murder, with NYPD denied authorization to step in.
I try to avoid citing polls, as they are at best snapshots in time and often are skewed samples, have loaded questions, etc. But one recent major poll found that blacks oppose defunding police two to one — a greater margin than Democrats or self-described liberals. All groups polled supported reform of police procedures and accountability for violations of same. Tom Homan, ex-ICE and ex-cop, called on Nancy Pelosi and Alexandria Ocasio-Cortez to defund their own protection first, before advocating that police departments be defunded. Such luminaries have security teams that can knock over a small country.
Atlanta: Urban War Zone. The June 12 shooting of a black suspect by a white police officer for suddenly seizing the arresting officer’s taser in a struggle (3:17) and fleeing arrest after initial respectful cooperation, may, Rudy Giuliani argues, ultimately be found legally justified. Rudy said he will withhold final judgment until the investigation is complete. The suspect had been driving under the influence of alcohol, and his car was blocking the drive-in entrance to a Wendy’s. Atlanta residents did not buy this. The result has been widespread assault, arson, looting, a cyberattack against police, and blocking a major highway, I-75. Atlanta’s black police chief resigned. Both cops were disciplined: the one who shot the suspect was fired, the other placed on administrative leave. The former has now been charged with felony murder. Atlanta’s black mayor, Keisha Bottoms, said this at a June 13 press conference:
While there may be debate as to whether this was an appropriate use of deadly force, I firmly believe that there is a clear distinction between what you can do and what you should do. I do not believe that this was a justified use of deadly force.
After the DA announced on June 17 that 11 felony charges would be filed against the officer who shot the suspect, and three felony charges against the other officer, Atlanta’s mayor said that police morale is down all across the country, and that in Atlanta it is “down ten-fold.”
The defense attorney for Garrett Rolfe, the officer who faces capital murder charges, gave an extraordinary interview to Fox News’s Laura Ingraham that same evening. He stated that the suspect fired the cop’s stolen taser from 12 feet away, aiming at the officer’s face. A taser is a deadly, incapacitating weapon in the hands of person’s untrained in its safe use. It can disable a person by penetrating body armor. A doctor friend informed me that a 20,000-volt taser charge to the face can blind the target if an eye is hit; or it can cause a brain seizure, with a reaction similar to electroconvulsive therapy (ECT).
Ex-NYPD commissioner Bernard Kerik told Fox News’s Steve Hilton that 95 percent of cop-citizen violent encounters come when someone resists a lawful arrest. He also said that when a cop is tased, he is knocked down and temporarily incapacitated while in possession of a sidearm. The cop thus has two choices when a taser is aimed at him: he can let you tase him and risk losing his gun or he can take you down. Kerik also noted that a fortnight earlier the DA, who claims that he has prosecuted more cops than anyone else in America, had charged six cops, five of them black, with using excessive force.
Here is an ABC video (0:59) showing how tasers are used to either impair muscle coordination or inflict temporary pain on resistant suspects; they have been used by the police since the mid-1970s. But a study funded in part by the Justice Department recommended that tasers “should not generally be used against pregnant women, elderly persons, young children, and visibly frail persons.” Georgia’s stun gun laws define a taser as a device that delivers an electrical charge of more than 20,000 volts. The Georgia Supreme Court held in 1999 that tasers are weapons that can cause “serious bodily injury.” Two weeks earlier, the DA, in charging a suspect for tasing someone — not a cop — said that under Georgia law a taser is considered a deadly weapon.
It intuitively seems unlikely that an Atlanta jury will acquit officer Rolfe on all charges. But if the defense can convince the jury that Rolfe faced a real risk of serious injury if hit by the taser charge — and that while disabled, risked losing his gun, and then being shot to death — he may stand a good chance of only being convicted on lesser charges.
Seattle: Quiet Violence of a Revolutionary Commune. On June 8, a coalition of groups avowedly revolutionary in purpose seized a six-block square area of Seattle, including the Seattle Police Department’s East Precinct, and declared it the “republic” of CHAZ — Capitol Hill Autonomous Zone — a name later changed to (1:59) CHOP, the last two letters are for Occupied Protest (the article text wrongly says “organized”). Seattle’s Capitol Hill area is home to about 50,000 people out of a city population of 750,000. For residents, 911 response times in that precinct have tripled since the seizure a week ago. The SPD’s West Precinct, located in the central business district, is the site of the city’s 911 center. Its area also covers City Hall, briefly occupied by protesters, led by a Trotskyite member of the city council. The city’s police chief, Carmen Best, initially resisted the mayor’s order to vacate the precinct; upon leaving, the police boarded up the precinct. She used tear gas to quell violent unrest downtown, until a federal judge — a George W. Bush appointee — ordered the police to stop using it, because it does not target precisely and thus injures peaceful protesters. The ACLU is suing Seattle for “unnecessary violence.”
Establishment of the commune was aided by a mayor who has no problem with its creation — even suggesting that 2020 could see a “summer of love” — the reference being to the hippie summer of 1967 in San Francisco. The signature song (3:30) that year was Scott Mackenzie’s “San Francisco (wear flowers in your hair)”. She ordered the police to abandon the precinct station, over the objection of Seattle’s police chief. The Capitol Hill occupiers published a list of 30 demands that go far beyond abolition of the SPD; in short, it is a laundry list of every imaginable radical left proposal floated over the past generation.
There seems to be little overt application of force in CHAZ/CHOP. One eyewitness account emphasizes the relative lack of physical violence, and disputes several contrary news reports. That report, however, is by a well-known local activist; the friendly reception he got may not be replicated as to would-be visitors known to have contrary views, or simply whose views are unknown. A Daily Caller reporter said that (4:58) most violent incidents happen at night:
There is definitely a lot of peace during — particularly during the day. We’ve seen productive conversations. There’s a conversation cafe but that’s definitely not the whole story. We see as the evening gets on in particular there’s a lot of tensions. Just last night things changed in the blink of an eye. At first there was a group just dancing and hanging out and one guy got on the microphone and claimed that a local business owner was actually holding somebody hostage at gunpoint and this mob came for the local business, broke down the fence, interrogated the business owners for about a half hour.
The ugly details came from the shop owner:
John McDermott told KIRO 7 News that he initially tried to detain a protester Sunday night who stole cash and set a fire in his Car Tender business on the edge of the so-called “Capital Hill Autonomous Zone.”
His son, Mason McDermott, helped tackle the suspect who “tried to cut me with a box cutter,” he told the station, showing large slits in his jeans close to his crotch.
Other protesters soon arrived — and video on social media shows the mob eventually knocking over a section of fencing, running in to confront the owners and angrily demand the return of the original suspect.
McDermott told the station he repeatedly dialed 911 for both police and fire crews. “All told 19 times,” he said.
He was “heartbroken” when they “finally said that they weren’t going to send somebody,” he said. “I mean, they are the cavalry,” he told the station.
In a CBS interview (6:53), Chief Best noted two limitations on what police are able to do: (a) they are unable to identify a leader or event influencers; (b) for nearly a decade Seattle police have been under a consent decree negotiated with the Justice Department. This last point renders questionable the claim of systemic racial bias. It consists of police practices designed by the Obama administration, whose president and attorney general were both black. Add in that Chief Best is black. Hence, neither in design nor implementation is the accusation of systemic police bias credible. Police harassment and brutality is thus episodic and done by bad cops. Seattle also is one of the most left-wing cities in America (not to imply that those cities with right-of-center polities should be presumed racially biased).
For her part, Best said that if public safety is endangered in CHAZ/CHOP, she will send the police in: “There is no cop-free zone in the city of Seattle.” She added that multiple reports alleging crimes in the area have been filed. The Seattle Fire and Transportation departments have worked to move barricades and open up lanes for traffic. The result is a shrinking of the CHAZ/CHOP area; it is now three blocks, half its original size. A former city councilman notes that area businesses remain shut and that the city is closing miles of streets: “The city is giving in to the protesters. They want certain streets closed and the mayor has been closing about 20 miles of streets all across the city.” He adds what a friend living inside the zone told him, “A friend of mine told me yesterday, who lives in the area, he says he never goes outside after 8 o’clock at night without a firearm. That’s a sad state of affairs of how he has to live his day-to-day life.” The City of Seattle’s and the mayor’s Twitter feeds paint a rosier picture. Here is a live online feed.
Much of the violence is quiet, in the sense that its commission does not create potent pictures of obvious rights violations. Consider this account from one terrified resident:
I’m scared. I’ve been scared every day since Sunday, and I haven’t gotten a lot of sleep. For the first time in my life in Capitol Hill, I hear gunshots every single night. I’ve heard people screaming every single night outside. And they’re not protest screams.… I’ve also heard screams of terror out there, and I don’t know what’s happening out there.
Said another: “There’s groups under there that are able to reign free with no sense of law.” Yet another resident reports instances of rising intimidation; protesters threatened to move a concrete barrier placed by police to facilitate traffic flow, with one of them telling residents: “From the hours of 10 p.m. to 6 a.m., this is no longer local access, we are occupying all of this.” Things are highly fluid; one TV journalist reports (2:18) she has “no idea” what will come next. At times, CHAZ/CHOP seems eerily reminiscent of the Duchy of Grand Fenwick.
Not at other times. Some people have reportedly been required to show ID to armed guards with AR-15s — members of a local leftist gun club — at barricades; an unlawful search; proprietors must reportedly pay a fee to keep their business open. This is not open violence. It is coercion nonetheless. Who will tell armed guards that they have no right to check ID? Who will decline to pay a fee in a zone enclosed by barricades, with no police in sight? If this is not psychological coercion, and hence unlawful, what is?
Democratic Party Urban Dominance. Many top cities have long been under Democratic Party dominance. Minneapolis’s last Republican mayor left office in 1961. Atlanta has had two Republican mayors in a history dating back to 1848, covering 60 mayors: 1871–72 and 1877–79. Seattle’s last Republican mayor, I am advised by a knowledgeable local resident, departed early in 1969; the 28 mayors since have been either Democrats or Independents, but in the event have moved ever more sharply to the political left. Newt Gingrich adds more cities to the Democratic failure list. One notable Democratic city, Boston, saw ignorant vandals obscenely deface the 54th Massachusetts Regiment Memorial, which honors the contributions of black Union soldiers during the Civil War, whose exploits were featured in the celebrated 1989 film Glory. By contrast, French president Emmanuel Macron, a leader well to the left on France’s political spectrum, has stated that statues will be protected. Boston’s mayor backs removal of the Abraham Lincoln statue from City Hall — erected in 1879 with money contributed by freed slaves — while doing nothing about Faneuil Hall, named for slaveowner Peter Faneuil, a site for slave market auctions.
Targeting Police. One tally shows 431 police officers have been injured since the protests, riots and looting began after the death of George Floyd. And what would a city without a police presence give us? Watch this shootout (1:43) on D.C. streets, which ends as police cruisers approach.
Bottom Line. These three cities show diverse paths that have been taken since the protesters and violent elements took over the downtown streets of many American cities. Minneapolis offers a glimpse of self-governance, with voters getting the radical governance they chose at the ballot box. Atlanta shows how riots and looting can spring out of a single instance of poor judgment by a police officer. Seattle is an exemplar of a city where disorganization and confusion run rampant. The one clear agenda posted seems far too radical to be accepted, with many of its demands essentially unrelated to the killing that started America’s three-week nightmare.
In the final installment of The Federalist Papers, No. 85, Alexander Hamilton wrote, “A nation, without a national government, is, in my view, an awful spectacle.” So are cities run by irresolute local governments in thrall to radical ideas. Voters should, to the maximum degree tolerable, be allowed to choose who governs them, but they should also bear the full cost of their foolish choices and not be able to offload these on others who had no say in their choice. The insurance company term for offloading one’s risk onto others is “moral hazard”: if you are insulated from the costs of bad acts, you will do more of them. Or, as the late Nobel economist Milton Friedman said, no one spends other people’s money as carefully as they spend their own.
If locals wish to defund or abolish their city’s police departments, they should be allowed to do so, if accomplished peaceably and otherwise lawfully. Then the virtues and defects of such acts will become apparent in short order. The latter bid fair to be greater than the former. Then voters may reconsider the idea.
John C. Wohlstetter is author of Sleepwalking With the Bomb (Discovery Institute Press, 2nd ed., 2014).