Does Fear or Security Drive Policing Tactics at the RNC?
Just days before the first national political convention following the Sept. 11 terrorist attacks was set to kick off in Boston, Douglas Woodlock was in a bind. The Massachusetts district court judge had heard arguments from activists in the lead-up to the 2004 Democratic National Convention that the city’s ban on permits for protest marches and the use of a designated “demonstration zone” outside the Fleet Center violated the First Amendment rights of political protesters. With little time and few resources available to make new arrangements, Woodlock was forced to rule in favor of the security of convention delegates, condemning hundreds of protesters to be herded into a paltry fenced-in demonstration area.
In his opinion, Woodlock lamented his own judgment as an “irretrievably sad” moment in the legal balancing act between free expression and security. “One cannot conceive of what other elements you would put in a place to make a space more of an affront to the idea of free expression than the designated demonstration zone,” he wrote. “Protesters, demonstrators, and dissidents outside a national political convention are not meddling interlopers who are an irritant to the smooth functioning of politics. They are participants in our democratic life. The Constitution commands the government to treat their peaceful expressions of dissent with the greatest respect—respect equal to that of the invited delegates.”
Ahead of this year’s Republican National Convention in Cleveland—which opens on Monday after two weeks marred by deadly police shootings, protests, and violent ambushes on law enforcement—the tension captured by Woodlock’s opinion has reared its head again. With hundreds of protesters expected to descend on the Quicken Loans Arena to voice their displeasure with presumptive Republican nominee Donald Trump, convention organizers and law enforcement are deploying measures similar to those used in 2004. Police officers from around the country are reportedly flooding the city to bolster Cleveland’s law enforcement presence to almost 5,000 officers, and city officials have established a demonstration zone around the “Q” to help corral unruly protesters.
“A protest zone is one way of describing it,” said Harvey Silverglate, a civil rights attorney and cofounder of the Foundation for Individual Rights in Education. “I like to call it a ‘demonstrators’ cattle pen,’ which is really what it is.”
Unlike during the 2004 convention, however, civil rights groups pushed back early against restrictions. In June, the city settled a lawsuit with the ACLU that alleged the city’s proposed 3.5-square-mile “event zone,” where no protest events could be held, was an unduly broad restriction that violated the First Amendment.
“When the government is going to step in and limit speech in some way, it has an obligation to narrowly tailor restrictions to a specific reason for doing so,” explained Stephen David, a spokesman for the Ohio ACLU. Halving the size of the event zone, he said, gives protesters better access to the convention, ensuring that they’re heard by delegates and other officials in attendance and not simply locked away in a chain-link pen. “There’s always tension between speech and security, but it’s certainly possible to strike a balance in a way that they can coexist together.”
Despite this victory, civil rights advocates worry that the heavily armed police presence at the convention will have a chilling effect on protesters; at this moment, Cleveland police are gearing up for war. With the convention designated a National Special Security Event by the Department of Homeland Security, Cleveland has access to $50 million in federal grant money to outfit officers with military-grade technology, including but not limited to tactical armor, BearCats, steel batons, tear gas, and body cameras. To many, the presence of a heavily armed police force marching through the streets of an American city does not provide a sense of security. Rather, it functions as a symbol of intimidation and a culture of fear. (Neither the Cleveland Police Department nor the office of Mayor Frank Jackson responded to multiple requests for comment.)
“The police should not be militarized in communities where people are simply expressing their civil rights,” said DeRay Mckesson, a Black Lives Matter activist who was among 180 arrested while protesting in the aftermath of Alton Sterling’s death in Baton Rouge, Louisiana. The ACLU filed a federal lawsuit against the city’s police force over the “disproportionate deployment of militarized equipment” during the recent protests, arguing that the presence of military-grade gear violated protesters’ First Amendment rights through the threat of force.
Baton Rouge “is just another city where police showed up with automatic weapons to greet people with posters and cell phones,” said Mckesson. “This is a display of power intended to intimidate communities so people won’t express dissent or disappointment with those who are supposed to be protecting them.”
Protesters don’t have the same legal recourse against this kind of intimidation that the ACLU used to fight against protest zones. This is primarily because of the culture of judicial defense that’s emerged since 9/11: Courts tend to “presume the imminence” of terrorism and violence and, in turn, are more likely to defer to government authorities than the First Amendment rights of protesters who might file an injunction over convention security. Between a pattern of violence at past Trump rallies, the targeted attacks on police in Dallas and Baton Rouge, and the recent terror attack in Nice, France, Cleveland law enforcement (and judges) probably aren’t taking any chances in planning for any violent emergency at an event that’s already seen as a breeding ground for conflict.
But that also means judges who deal with cases regarding police intimidation (as with the ACLU suit in Baton Rouge) are likely to understate the chilling effect of a beat cop in full tactical gear. “When it comes to police, the court will say that they are restricted in how they use the military gear, but simply bringing it out and making a show of it is perfectly legal,” explained Silverglate. “My guess is that courts asked to deal with this will not disallow police to have this equipment present; they’ll simply order that it be used with not a very heavy hand.”
Like Woodlock before them, civil rights advocates see these stringent security restrictions as a symptom of the post-9/11 security state. To that end, it’s not just anti-Trump protesters who are wary about their rights; the ACLU’s suit against the Cleveland police represented both Organize Ohio, a progressive political organization, and the conservative Citizens for Trump. “The restrictions that the city put in place were infringing on everyone’s rights,” said David. “The measures, regardless of political perspective, were designed to ensure everyone’s access to free speech.”
Some protest groups are reaching across ideological lines to protect their First Amendment rights. While the ACLU plans to work closely with the National Lawyers Guild to provide observation and legal support for activists, the organizers of Stand Together Against Trump have been proactively meeting with police and city officials for two weeks. They’ve established a center for nonviolent training designed to help protesters of all ideological backgrounds stay free and safe in the streets of Cleveland this week. The group even shot a video with Ralph King, cofounder of the Cleveland Tea Party, to dissuade activists from escalating to violence against the police—and one another.
“We’ve come together to intellectualize these protests,” said Stand Together Against Trump spokeswoman Monica Moran. “The media always focuses on tensions between police and protesters after tragic events.... That’s not the impression we want to give to the world of the city of Cleveland.”
Despite the legal campaign of the ACLU and organizing efforts of groups such as Stand Together Against Trump, Cleveland seems poised for upheaval amid what looks to be one of the most heated political conventions since 1968. While judges like Woodlock might bemoan the state of America’s legal balancing act between liberty and security with a series of jurisprudential platitudes, Mckesson has more practical words of advice for first-time demonstrators: Keep your eyes peeled at all costs.
“Watch your surroundings and make sure you travel with people,” he said, “and know that the goal of the police in these circumstances is to make people fearful.”