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Two police officers who allegedly assaulted a man outside of his own house and arrested him on bogus charges after failing to identify themselves as law enforcement are protected by qualified immunity and cannot be sued, a federal court confirmed Monday.

Shase Howse, the appellant, alleges that on July 28, 2016, a group of men pulled up to his home in an unmarked vehicle without uniforms on and asked him if he lived at the residence. After Howse answered in the affirmative, Officer Brian Middaugh of the Cleveland Police Department (CPD) pressed Howse on if he was surehe lived there. "Yes, what the fuck?" Howse allegedly responded, still unaware Middaugh was a cop. Middaugh, commenting on Howse's bad attitude, then exited the unmarked vehicle and approached him on the porch, asking him once again if he lived there. Howse said he did.

Following that exchange, Howse alleges that Middaugh commanded him to put his hands behind his back because he was going to jail. Howse did not oblige, telling Middaugh that he lived at the residence and that he'd done nothing wrong. Middaugh then threw him to the ground, and with the help of CPD Officer Thomas Hodous, handcuffed him while Howse resisted. It was after he was tackled that Howse realized the men were police officers.

As he lay on the porch, Howse's mother, who heard the noise from inside, exited the residence, where she says she saw one man straddling her son while another punched his head with a closed fist, causing Howse's head to hit the porch. She, too, did not initially realize they were officers.

Howse was eventually jailed for several days before posting bond, and charged with two counts of assault and one count of obstructing official business. TheCuyahoga County Prosecutor's Office eventually dismissed those charges.

Howse then brought three claims against Middaugh and Hodous: one for excessive force in violation of the Fourth Amendment, another for malicious prosecution in violation of the Fourth Amendment, and the last for assault and battery in violation of Ohio law. He also brought one claim against the City of Cleveland, arguing that the municipality shares liability for the officers' constitutional violations. He first filed his suit the United States District Court for the Northern District of Ohio at Cleveland, where a panel granted the officers qualified immunity and dismissed the case against the city. Howse then appealed.

In rejecting Howse's suit, Circuit Judge Amul Thapar of the Sixth Circuit Court of Appeals illustrated what makes qualified immunity so confounding: public officials can violate your civil rights without consequence if those rights have not been "clearly established" by existing case law.

"'Clearly established' means that the law is so clear at the time of the incident that every reasonable officer would understand the unlawfulness of his conduct," Thapar writes in his majority opinion. "To avoid 'paralysis by analysis,' qualified immunity protects all but plainly incompetent officers or those who knowingly violate the law."

Reasonable officers should know basic right from wrong, Thapar implies, yet according to qualified immunity, they also need the judiciary to spell out those fundamentals with myopic detail.

What's more, the doctrine has indeed been used to protect "plainly incompetent officers" and "those who knowingly violate the law." Consider the two cops in Fresno, California, who allegedly stole $225,000 while executing a search warrant. The U.S. Court of Appeals for the 9th Circuit ruled that "the City Officers ought to have recognized that the alleged theft was morally wrong," but that they "did not have clear notice that it violated the Fourth Amendment." Both officers were granted qualified immunity.

Then there was the sheriff's deputy in Coffee County, Georgia, who shot a 10-year-old boy while aiming at the family's non-threatening dog while in pursuit of a suspect who had no connection to the little boy or his dog. Because there was no case law saying that shooting someone while aiming at something else infringes on someone's rights, the deputy received qualified immunity. Or the police officer in Los Angeles who shot a 15-year-old boy one morning because he saw the boy's friend holding a plastic airsoft gun replica. In that case, there was no legal precedent that said accidentally shooting a bystander infringes on the bystander's rights, though the U.S. Court of Appeals for the 9th Circuit acknowledged that "a rational finder of fact" would conclude that the officer's conduct "shocked the conscience and was unconstitutional under the Fourteenth Amendment." The officer got qualified immunity anyway.

But Thapar's decision is in a league of its own, says Clark Neily, vice president for criminal justice at the Cato Institute. "It requires a certain amount of effort to write an exceptionally bad qualified immunity opinion, but this is, by any standard, an exceptionally bad one," Neily says. "Simply refusing to interact with police, and even being rude to them, does not provide probable cause for them to make an arrest, which is really what this case boils down to."

Thapar disagrees. "Howse argues that the officers violated his clearly established right to be free from 'unreasonable government intrusions,'" he writes, calling that basic constitutional standard "much too vague." The officers needed to be specifically told by the courts that assaulting someone who disobeys an order and using "additional force" when that person resists arrest violates the Fourth Amendment.

The primary problem with that framing, Neily notes, is that it assumes Howse should have been arrested in the first place. Yet when determining whether to grant qualified immunity, the courts are legally required to accept the plaintiff's version of events. After all, the decision to withhold qualified immunity only gives someone the right to sue a public official.

For their part, the officers allege Howse was "lingering suspiciously" (in front of his own house) and that the area is "known for violence, drugs, and gang activity." They admit that Howse confirmed he lived at the home, but their doubts about his honesty led them to "investigate more," culminating in the violent confrontation. In his decision, Thapar pays lip service to Howse's account but proceeds to rule under the assumption that his arrest was warranted.

It's for that reason the Sixth Circuit erred in denying the petition for a rehearing en banc, said Circuit Judge Julia Smith Gibbons in a dissent published Monday. "In qualified immunity cases, we have long held that a plaintiff's right must be defined with careful attention to the 'specific factual circumstances' of the case," she writes. "And yet, in framing Shase Howse's right in this case, the panel fails to account for his suspected criminality (none), location (home), or conduct (truthfully answering questions)."

Gibbons also takes issue with the majority's dismissal of the malicious prosecution claima decision she calls "a precedent-setting error of exceptional public importance." Thapar asserts that, in resisting arrest "by stiffening up his body and screaming at the top of his lungs," Howse provides probable cause for the charge of obstructing official business. "And because there was probable cause for that charge," Thapar writes, "Howse cannot move forward with any of his malicious-prosecution claims," notwithstanding the fact that Howse's original crime was sitting outside of his own house.

On the assault and battery claim, the officers invoked "an Ohio statutory provision which provides a general grant of immunity to government employees." Thapar, a former federal prosecutor, granted that as well.

The Sixth Circuit's dismissal joins a mounting pile of decisions that protect public officials at the expense of the very people they've sworn to serve. But qualified immunity has come under new scrutiny amid protests surrounding George Floyd, the unarmed black man killed by former Minneapolis police officer Derek Chauvin. Rep. Justin Amash (LMich.) recently introduced a bill to kill the doctrine.

"We have an astonishing double standard in this country where members of law enforcement hold we the citizens to a very high standard of accountability," says Neily. "It is not a defense that you didn't know that your conduct was illegal. But when the shoe is on the other foot, and the question is what standard of accountability members of law enforcement should be held to, they insist that it be so low that it is practically zero."

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Cops Who Allegedly Assaulted and Arrested a Man for Standing Outside His Own House Are Protected by Qualified Immunity - Reason

A federal judge has placed formal restrictions on the Portland Police Bureaus ability to use tear gas on protesters, citing evidence officers have used excessive force in scattering recentdemonstrations.

In an order issued Tuesday night, U.S. District Court Judge Marco Hernandez granted a 14-day temporary restraining order on the PPBs use of the gas. The city continues to see nightly demonstrations demanding racialjustice.

The declarations, in this case, show that PPB has regularly used tearto disperse peaceful protesters, Hernandez wrote. It is likely that it will continue to do so. The risk of irreparable harm is further heightened by the context in which these protests areoccurring.

But while Hernandez seemed to side with plaintiffs who sued the city and have argued that the use of gas has been indiscriminate and unconstitutional, he did not grant the relief they sought. Police are still able to use tear gas during the two-week restraining order, Hernandez ruled. They just have to follow their ownrules.

The Court therefore orders that PPB be restricted from using tear gas or its equivalent except as provided by its own rules generally, Hernandez wrote. In addition, tear gas use shall be limited to situations in which the lives or safety of the public or the police are atrisk.

The ruling amounted to a sort of half-win for the group Dont Shoot Portland and two individual protesters who sued the city last week over the tear gas grenades that had become a common feature of protests playing out nightly in downtownPortland.

Well see if its a win based on what happens on the streets in the next week, said Jesse Merrithew, an attorney for the plaintiffs. If PPB stops gassing people, then its a win. If it doesnt change whats been happening on the streets then we didnt accomplish ourgoal.

Another attorney for the plaintiffs, Juan Chavez, said the order will make it easier forhis clients to hold police accountable if they fail to follow bureau policy around deployinggas.

What the judge is doing is putting in an order that allows the plaintiffs to have a fast track to a contempt hearing, said Chavez, who works at the Oregon Justice ResourceCenter.

Earlier in the day, Merrithew and attorneys with the city appeared before Hernandez via teleconference to make their cases, both impressing upon the judge the importance of hisruling.

Portland police used tear gas and rubber bullets to disperse protesters from near the Justice Center an hour before the 8p.m. curfew went into effect on May 30, 2020. The protests were against racist violence and police brutality in the wake of the killing of George Floyd by a white Minneapolis policeofficer.

JonathanLevinson/OPB

We know that the protests will continue tonight, tomorrow and indefinitely into the future,Merrithew told Hernandez at the hearing. If this court does not act, it is a certainty that police will use tear gas against protestersagain.

Lawyers for the city, meanwhile, argued that tear gas is a vital tool, used only when demonstrations get sufficiently out ofhand.

The city is not always perfect, and its response to protest is not always perfect, Deputy City Attorney Naomi Sheffield said. The city certainly hopes that, with or without this order, there wont be any further need for riot-control agents. But the city would ask that the court not take the unprecedented step of entirely eliminating thistool.

The lawsuit against the city alleges Portland officers have used indiscriminate, unchecked, and unconstitutional violence against protesters by repeatedly deploying tear gas against large crowds that have gathered in downtown Portland since May 29. That force is a violation of First Amendment free-speech protections and Fourth Amendment protections against unreasonable seizure, plaintiffs say, and should beprohibited.

Plaintiffs asked Hernandez not only to immediately issue a temporary restraining order against the Portland Police Bureaus use of gas on protesters but to issue an injunction on using gas as a crowd control measure moving forward. Plaintiffs have also requested that the city be required to create new policies for using crowd controlweapons.

Portland police use a substance known as CS gas to scatter demonstrators by causing extreme discomfort, coughing, watering eyes and snot discharge, among other possible effects. A similar substance used by the city, known as OC gas, is more akin to pepperspray.

Plaintiffs argue Portlands policies allowing use of these weapons against crowds are unconstitutional. Even if theyre not, they say, they are too often used on largely peaceful gatherings where only a small portion of people pose athreat.

PPBs actual practice and custom is to allow the use of tear gas against a crowd even when a substantial number of people in that crowd, or even the majority of that crowd, have engaged in no criminal acts and are not a danger to any person, the lawsuitsaid.

Portland police used tear gas and rubber bullets to disperse protesters from near the Justice Center an hour before the 8 p.m. curfew went into effect on May 30,2020.

JonathanLevinson/OPB

In a response submitted Tuesday, the city says plaintiffs are mischaracterizing its actions. It notes that massive protests have taken place throughout the city in the last week actions that, like similar demonstrations nationwide, were spurred by the May 25 death of George Floyd, a Black man killed by a white Minneapolis policeofficer.

In Portland, protesters have often blocked vehicle traffic while marching, even briefly shutting down Interstate 84 on the citys eastside.

These have occurred without use of riot control agents; in fact, largely without police intervention at all, the citys attorneyswrote.

Rather than seeking to curb demonstrators ability to speak out over police abuses and systemic racism, lawyers for Portland say the city only uses tear gas and other less-lethal weapons in limited instances in which people are throwing things at officers, vandalizing property or otherwise endangering publicsafety.

While protests have been overwhelmingly peaceful in the city, some demonstrators have repeatedly lobbed water bottles, fireworks, cans and other objects at police. According to the city of Portland, at least 30 officers have been injured since the protestsbegan.

Again and again, the PPB has reacted to those actions by declaring a civil disturbance or unlawful gathering. When crowds dont depart, officers have fired tear gas, flash bang grenades and other devices, sending protestersfleeing.

Police walk by a flaming dumpster during demonstrations in Portland, Ore.,May 31, 2020. The protests ultimately ended with police using tear gas and rubber bullets to disperse the crowd gathered around the Justice Center in downtownPortland.

JonathanLevinson/OPB

Confrontations have been especially common near the Multnomah County Justice Center, which several protesters broke into on May 29, setting fires that were quickly extinguished. The building houses the citys police headquarters, a jail containing hundreds of adults in custody, and courtrooms. It is, in short, a perfect symbol of the harms the protesters seek to address, the lawsuitsaid.

Since that incident, police have largely limited their efforts to keeping demonstrators away from the Justice Center, and have left protesters alone in other parts of thecity.

While some businesses also were vandalized and looted on May 29, the Justice Center incident with its possibility for a loss of prisoners lives merited special attention from the judgeTuesday.

Your request is a total ban, so that when people are lighting the Justice Center on fire, the police would not be able to use tear gas, Hernandez told Merrithew, the plaintiffs attorney. Are you suggesting to the court that in those circumstance the police shouldnt be able to use teargas?

Merrithew said plaintiffs were not asking for that. That was inartful, he responded. We should have thought that through more in thepleadings.

Instead, he said, his clients are asking for a ban on tear gas when the people harmed are individuals who have done nothing greater than passiveresistance.

City attorneys say riot control agents are used under strict rules, with demonstrators given adequate notice and time to leave, and with an incident commanders specific permission based on activity deemed unsafe. The city says using tear gas and other weapons on a larger group of people is far safer than thealternative.

Without riot control agents, including CS gas, law enforcements ability to disburse [sic] an unlawful assembly would likely require physical force, including person-to-person contact, which carries much higher risks for all involved, the citys answersaid.

That argument is similar to one police bureau officials have made under questioning from reporters in the lastweek.

But plaintiffs argue that police have not used tear gas and other weapons as judiciously as they claim. Their lawsuit says officers have used tear gas without warning or provocation, subjecting demonstrators to injury andpanic.

The plaintiffs and policehave submitted links to videos supporting their version ofevents.

One video, submitted by plaintiffs, shows officers firing weapons down what appears to be Southwest Taylor Street in downtown Portland, while no confrontation with demonstrators is evident. As they fire, onlookers scream that they are shooting gas into a crowd that includeschildren.

Videos submitted by police, meanwhile, show bottles, smoke bombs and other objects being hurled at police as they order demonstrators to depart. Another video shows a birds-eye view of protesters repeatedly kicking and pushing the chain link fence blocking off the area around the Justice Center. Officers eventually fire gas and other weapons at demonstrators in thevideos.

A person kicks the fence surrounding the Multnomah County Justice Center during protests over police brutality in Portland, Ore., June 5,2020.

JonathanLevinson/OPB

At Tuesdays hearing, city attorneys did not discount the possibility that police could have violated bureau use-of-force policies at some point during the protests. But Sheffield said the appropriate answer to such instances would be to sue the city for damages, not secure a blanket ban on tear gasuse.

But Hernandez found the videos, along with declarations filed by demonstrators,persuasive.

There is no record of criminal activity on the part of Plaintiffs, he wrote. To the contrary, there is even evidence that some protesters were confronted with tear gas while trying to follow police orders and leave the demonstrations. Given the effects of tear gas, and the potential deadly harm posed by the spread of COVID-19, Plaintiffs have established a strong likelihood that Defendant engaged in excessive force contrary to the FourthAmendment.

Medical officials saytear gas can help spread COVID-19 by causing coughing and sneezing, and can make people more susceptible to being harmed by theillness.

Its really, really a disaster, Dr. Melissa Belli, who works at Beavertons Virginia Garcia Wellness Center, told OPB last week. Its not only going to affect the people at [the] march but its going to affect the whole community. Its just going to have a domino effect in the way of the spread of thedisease.

The lawsuit includes declarations from 11 protesters who say police deployed gas with little reason, including a man who says his pregnant wife was caught in a cloud of gas, despite their attempts to remain distant from anyconfrontations.

There was no hint of provocation by either may family or any group I saw, the demonstrator, Andy Green, wrote. I honestly just felt like we [were] embodying the spirit toassemble

Green and his wife have filed a separate lawsuit against the city, seeking up to $200,000 in damages, The Oregonian/OregonLivereported.

Two Portland city commissioners, Jo Ann Hardesty and Chloe Eudaly, have called for a ban on tear gas at demonstrations. Mayor Ted Wheeler, the citys police commissioner, last week said hed told police to limit use of the gas to situationsin which there is a serious and immediate threat to life safety, and there is no other viable alternative fordispersal.

At issue Tuesday was the temporary restraining order, which plaintiffs attorneys argued was necessary to prevent an ongoing breach of constitutionalrights.

PPB tear gassing crowds of demonstrators constitutes excessive force and chills all peoples freedom of speech and assembly, a motion requesting the order said. People who would otherwise participate in protests and protesters now fear doing so due to unwarranted and indiscriminate police violence againstthem.

According to city attorneys, police have not used CS gas against protesters since Wheeler issued theorder.

Portland is not the only city grappling with the use of tear gas, as the nation erupts in calls for racial justice. Seattle Mayor Jenny Durkan last week temporarily suspended use of tear gas by that citys police force. Three City Council members have called for Durkan toresign.

Meanwhile a federal judge in Denver recently curbed officers ability there to use tear gas and other riot-control weapons. Portland city attorneys argued Tuesday that restrictions placed on Denver police were less strict than existing use-of-force guidelines used by thePPB.

Hernandez is expected to issue a decision on whether to grant a temporary restraining order within the nextday.

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Judge Considering Whether To Ban Tear Gas In Portland Protests - OPB News

A number of protesters are suing Donald Trump and other officials over their treatment during a George Floyd demonstration at Lafayette Square in Washington on 1 June.

The protesters have filed the suit, reported by Politico, alongside the Washington DC chapter of Black Lives Matter, alleging that their forced clearance from the area while peacefully protesting violated their constitutional rights.

The plaintiffs include Radiya Buchanan, Ann Dagrin, and Lindsay Field, who were all present at the demonstration, who have made the filing against Mr Trump, Attorney General William Barr, Defense Secretary Mark Esper and other heads of law enforcement that facilitated the clearing of protesters.

Sharing the full story, not just the headlines

The lawsuit comes following accusations that Mr Trump violently cleared peaceful protesters in Lafayette Square with tear gas and rubber bullets for a photo op at a local church.

The complaint details that the demonstrators are suing Mr Trump and others on the grounds of violation of First Amendment rights to free speech and assembly, Fourth Amendment rights to freedom from unreasonable seizure, and conspiracy to violate civil rights.

Without provocation, Defendants directed their agents in the US Secret Service, US Park Police, DC National Guard, and US Military Police to fire tear gas, pepper spray capsules, rubber bullets and flash bombs into the crowd to shatter the peaceful gathering, forcing demonstrators to flee the area. Many peaceful demonstrators were injured, some severely, by this unprovoked attack, the complaint alleges.

The protest outside the White House was only one of hundreds taking place in all 50 states over the death of George Floyd, a black man who died in custody after a white police officer pinned him to the ground with his neck for a prolonged period of time.

The death of Floyd has sparked national unrest not only in the US but internationally, with hundreds of thousands of people calling for an end to systemic racism and discrimination against black people.

The incident at Lafayette Square has drawn widespread criticism over Mr Trumps apparent willingness to use force and military power against protesters seemingly unnecessarily.

Police cleared the crowd just as Mr Trump had vowed that he was a president of law and order, and an ally of peaceful protesters in a press conference at the White House acknowledging the Floyd protests.

During the speech Mr Trump also vowed to end violent protests across the country, threatening to deploy heavily armed US military troops to cities even if mayors and governors object.

The filing states that the plaintiffs are requesting a declaration that their rights have been violated, an injunction to allow protesters to continue to demonstrate without infringement, punitive damages, and the reimbursement of costs and fees.

The US Department of Justice has been contacted for comment by The Independent.

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Washington protesters sue Donald Trump and other officials over violent clearing for photo op - The Independent

Exclusive

Donald Trump trampled the constitutional rights of protesters when he ordered law enforcement to unleash tear gas, pepper spray and rubber bullets on them ... this according to a new lawsuit.

The President is being sued by 3 protesters who claim they were demonstrating outside the White House at Lafayette Park on June 1 -- the day POTUS took his now-infamous church photo-op.

According to the lawsuit, obtained by TMZ, the protesters claim they were part of a peaceful demonstration and the dispersal warnings to the crowd were not clear or intelligible. They say all of a sudden officers in riot gear charged them with their batons, firing rubber bullets and using pepper spray.

In the docs, the protesters claim the crowd-clearing tactics violated their constitutional rights, including freedom of assembly under the First Amendment and their right to be free from excessive force under the Fourth Amendment.

In fact, they invoke the words of President Franklin D. Roosevelt saying June 1 is "a day that will live in infamy."

The protesters also claim the Trump Administration later lied about the amount and kinds of force used to disperse the crowd.

According to the suit, the protesters want an injunction allowing them to exercise their right to protest without fear of retribution and to restore access to Lafayette Park, which has since been closed off by fences.

The protesters also want a finding that the use of tear gas, flash-bang grenades, smoke bombs and rubber bullets was unconstitutional.

Oh, and in addition to President Trump, they are also suing Attorney General Bill Barr, Secretary of Defense Mark Esper and D.C. National Guard Commander General William Walker ... and they want damages for injuries.

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President Trump Sued by Protesters Who Claim They Were Tear Gassed - TMZ

When I joined the military, some 50 years ago, I swore an oath to support and defend the Constitution. Never did I dream that troops taking that same oath would be ordered under any circumstance to violate the Constitutional rights of their fellow citizensmuch less to provide a bizarre photo op for the elected commander-in-chief, with military leadership standing alongside.

Under what circumstances may the government use lethal and non- or lesser-lethal force in the face of unlawful protests, riots, and looting? The answer is context dependent. But the use of such forcewhether exercised by state or federal armed forcesis always constrained by a fundamental constitutional principle of reasonableness, so long as no armed conflict exists. Although I agree with everything Mark Nevitt wrote in his Just Security article on the powers and limitations of the Presidents response to the recent protests, it is important to ground the discussion in constitutional norms rather than just Department of Defense understandings or policy which would apply to use of the US military as well as federal and state law enforcement authorities.

It is critical to understand the scope of the state and federal governments authority to use physical force against individuals. Although federal and state authorities generally have authority to control domestic violence and discretion to determine the means necessary to do so, they must exercise that authority and discretion reasonably under the U.S. Constitution. In fact, the use of force continuum to which law enforcement agencies generally adhere as policy should be understood to be a constitutional requirement.

The Use of Force and the Constitution

All uses of lethal and non- or lesser-lethal physical force by government agents must be reasonable under the circumstances. This is not only wise policy, it is a constitutional demand. Reasonableness is required either by the Fourth Amendment or by the general constitutional demand that all government action be reasonable and non-arbitrary. In this context, the latter reasonableness requirementthat all government action be reasonable and non-arbitrarycan also be based in the Due Process Clauses of the Fifth and Fourteenth Amendments which protect against government infringements of personal liberty, including the infliction of physical injury.

Although not all measures to control crowds, riots, or looting necessarily implicate the Fourth Amendment, some certainly would. The Fourth Amendment protects [t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures. Searches and seizures always entail the use of some measure of actual or constructive forcebroadly construedagainst persons and property.

The Fourth Amendment requires that all searches and seizures be reasonable. Courts interpret this requirement contextually. Reasonableness has substantive and procedural components. Substantively, there must be a legitimate constitutional basis for a search or seizure. Procedurally, both must always be conducted or executed reasonably. Measures adopted to control riots, looting, and crowds typically restrict or deprive individual movement, and therefore implicate arrests and other seizures.

Arrests involve substantial restraints on ones freedom of movement, typically taking someone from a public or private place where they have a right to be and placing them in government custody. Substantively, arrests require probable cause that the individual committed a crime. Procedurally, police may make arrests without a warrant for any crime committed in the officers presence or for a felony committed outside of an officers presence. Additionally, police may use only reasonable force to effect an arrest.

Seizures occur when someones movement is temporarily restricted in some meaningful way by an intentional show or use of government authority, including force short of an arrest. Substantively, in a law enforcement context, seizures are constitutional if they are based upon a reasonable suspicion that criminal activity is afoot or if there is some other specific, legitimate law enforcement purpose. Criminal behavior could include looting, assault, trespassing or a curfew violation. Other legitimate purposes for a temporary stop might include checking identification for a limited access area (such as by verifying press credentials, employment or residency) or seeking information related to a recent crime in the area. Procedurally, seizures are constitutional if the measures taken to effect a seizure, and during it, are reasonable under the circumstances. For example, stopping a suspicious person and conducting a non-intrusive frisk for weapons is appropriate if there is a reasonable suspicion both that the person may be involved in criminal activity and that they are armed and potentially dangerous.

Riot- and crowd-control measures include arrests and seizures, but not all measures would necessarily involve one or the other. Often, in these situations, an individuals movement or behavior is restricted or limited in some way, but they are free to leavein Fourth Amendment termsto go somewhere or do something else. A seizure occurs only when an individual is temporarily and intentionally immobilized, whether voluntarily or involuntarily, by a government agent. Efforts to effect a seizure or arrest must always be reasonable under a totality of the circumstances.

Notwithstanding the Fourth Amendment, there is also a strong argument that all government action must be reasonable in order to be constitutional. Generally speaking, government action must be reasonably calculated to achieve (or rationally related to) a legitimate government purpose. The government action must also be a reasonable and permissible means of achieving that legitimate purpose. As Justice Marshall wrote in McCulloch v. Maryland:

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

This is a general principle of constitutional law. Government action must be appropriate and plainly adapted to its alleged purpose. Not only must it not be prohibited by the Constitutions text, it must be consistent with the Constitution. Every use of physical force not amounting to a search or seizure must also, therefore, be reasonably directed to a legitimate end and reasonably necessary under a totality of the circumstances.

The Insurrection Act Does Not Alter These Constitutional Requirements.

The Insurrection Act allows a president broad discretion to use as much of the federal armed forces and state national guard units as he or she deems necessary to quell insurrections against the authority of a state or to remove substantial interferences with the enforcement of federal laws. A president could invoke either of these justifications in response to widespread riots and looting.

These statutes allow a president to take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination or conspiracy. Despite this broad language, the president may not authorize the armed forces to do anything he would like. Although the exigencies of a situation may require some deference to on-the-spot judgement calls, Congress cannot empower a president to violate specifically applicable aspects of the Constitution. The requirement that the use of all physical force be reasonable under the circumstances is one such specifically applicable constitutional requirement.

Recent Examples

Unreasonable use of lethal force that violates the Fourth Amendment.

The President has infamously tweeted that when the looting starts, the shooting starts. In Tennessee v. Garner, the Supreme Court held that the use of lethal force to stop a fleeing suspected felon is a Fourth Amendment seizure that must be reasonable. In this context, lethal force is reasonable only if the suspect presents a threat of serious harm to the officers or others. Shooting unarmed looters who are not engaging in any form of violence against a person would therefore clearly violate the Fourth Amendment as interpreted by the Supreme Court.

Unreasonable use of non-lethal force that violates the Fourth Amendment.

A viral video on social media apparently shows Minneapolis law enforcement shooting several people with rubber bullets or paint balls to force them to go inside a house rather than stand on a private porch. The officers were allegedly enforcing a curfew order. That order, however, prohibited only travel on public streets or places (with certain exceptions not relevant here). Violating the order is a misdemeanor. The curfew is likely a constitutionally reasonable response to the disorder and turmoil that has been taking place in Minneapolis. The Citys website containing the order specifically clarified, however, that people may be outside a home as long as they were on private property.

Under these circumstances, the use of non-lethal force to compel someone on private property to go inside a home was not rationally related to enforcing the curfew order. It also appears to lack any other basis in law and was undertaken without warning. Police were apparently shouting that people go inside their homes. When these individuals did not do so and continued recording, an officer said only light em up before the police fired. No additional warning and no explanation for the over-enforcement of curfew order were given. It would therefore amount to an unreasonable use of non-lethal force. Because the purpose was to confine someone in their home, and doing so is likely a seizure, it also violated the Fourth Amendment. The officers undertaking this action are guilty of an assault. The city is also subject to a civil action under federal law.

Another viral video shows several Georgia police officers apparently arresting two college students inside a car, smashing the cars windows and using tasers on both individuals despite no visible resistance. Under these circumstances, the use of force would not reasonably necessary to effectuate the arrest to enforce the curfew order. Indeed, two days later, the Georgia chief of police fired two of the officers pictured in the video, and the Atlanta mayor condemned the officers actions.

Unreasonable uses of force not implicating the Fourth Amendment.

On Saturday night, May 31, 2020, there were reports of Minneapolis police firing rubber bullets and using tear gas and flash-bang devices to disperse allegedly peaceful crowds or protesters, all without warning. Numerous videos indicate that reporters and their cameramen have been pushed and shoved without warning despite their obvious status. And police in Washington D.C. reportedly used rubber bullets and tear gas to break up peaceful protesters outside the White House this past Monday night on June 1, 2020. This included a now-viral video of police and/or national guard, without warning, striking an Australian reporter and her cameraman with a baton and riot shield, respectively, before also being shot with rubber bullets. And several videos from New York City and Los Angeles over the past week seem to show police driving cars into protesters.

Lets assume the police were correct that a lawful government directive or purpose required the people affected to disperse or leave the area at the time and place that these forcible measures were used. Using such non-, lesser-, or potentially-lethal force without prior warning would be unreasonable if less stringent measures were feasible. Invasions of liberty and personal integrity such as occurred in these incidents must have some specific justification, including the absence or failure of feasible, less-intrusive coercive measures.

These examples do not involve a Fourth Amendment search or seizure. Not only were the individuals free to leavemeaning they were not seized under court precedentthey were forced to do so. But even assuming that end was appropriate, can we say the use of tear gas, flash-bang grenades and less- or non-lethal bullets was proper? Can we say that potentially grievously injuring a person by running into them with a car is a reasonable response? Was it consistent with the Fifth and Fourteenth Amendments to the Constitution? Absent some reasonable justification for failing to use lesser coercive measures, the answer is almost certainly no.

Because reasonableness surrounding the use of physical force is a constitutional requirement, nothing in the Insurrection Act would change the above legal analysis. It does not matter if the government agents are members of the national guard or federal armed forces or of the city police or state troopers. Whether acting under state or federal authority, the U.S. Constitution imposes the same constraints.

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The authority to quell riots and looting must be exercised responsibly, meaning reasonably, at every level. All law enforcement officers, members of the National Guard and members of the federal armed forces must be told and trained to use force only when necessary and only when it reasonably appears that lesser means of coercion are not feasible under the circumstances or have failed. Warnings should be given before using physical force when possible. The Department of Justice and many law enforcement agencies refer to this as the use of force continuum. The continuum is not merely policy, however. It must be understood as a constitutional demand. Reasonableness is determined by what a government agent reasonably perceived in good faith under a totality of the circumstances. Those who have sworn to protect this country and its population have been vested with great power and must therefore show great restraint in the use of physical force.

Read more from the original source:
The US Constitution and Limits on Detention and Use of Force in Handling Civil Unrest - Just Security