Unpacking Government: How Does Law Enforcement Deal With Civil Disobedience?

Feb 20, 2017

Seattle police say the city sees about 300 demonstrations every year, but it now seems the rest of the country is following suit.

From the nationwide Women's March to spontaneous demonstrations at airports, more people are reportedly becoming more politically active by going to protests.

The First Amendment grants people the right to gather, but there are limits to that protection. 

'A Lawful Demonstration, Until It's Not'

Many of the protests people remember are the ones where civic disruption turns into chaos -- from the 1999 WTO riots  in Seattle to the city's more recent May Day protests.

Since 2012, the violence that erupts on May Day in Seattle has become predictable. The day begins with a largely peaceful labor and immigration march. Then those demonstrations devolve as more militant anti-capitalists begin throwing rocks, bottles filled with paint; and last year, Molotov cocktails; at police. Officers then intervene, which causes more chaos.

Seattle Police Sergeant Whitcomb works in the department's public affairs division. He says the department's approach to May Day has changed over the past several years.

Officers on the ground have to walk a line between protecting the lawful demonstrators, tracking the early warnings of violence, and trying to stop it when it happens.

"For us, every demonstration is a lawful demonstration, until it's not," Sergeant Whitcomb said.

It should be said that the Seattle Police Department is under a federal consent decree for patterns of excessive force, and the department has been criticized for how it handles demonstrators.

Seattle Police line up during May Day demonstrations in 2015.
Credit Ted S. Warren / AP Photo

But Whitcomb says when civil disobedience turns into assault and property damage, police have to intervene.

"It is not anyone's right to hurt or destroy or intimidate," Whitcomb said. "You don't have those rights."

Protestors can lose their first amendment rights when speech becomes violent action.

In the end, the right to free speech has to be weighed against property rights or the right to walk down the street or the right to personal safety.

"In a lot of these [things] we're talking about, rights are not absolute," said Michael McCann, a University of Washington professor who studies protest. 

Protest, Demonstration And Civil Disobedience

Sometimes people use the words protest, demonstration and civil disobedience interchangeably, but they aren't always the same, McCann said.

First, civil disobedience means intentionally breaking a law either to protest the law itself or to call attention to some other injustice.

The term is often traced to Henry David Thoreau's essay "Civil Disobedience," where the writer describes not paying his taxes as one form of protest against government. Civil disobedience can also look like political graffiti or sit-ins on private property.

Marches, rallies and demonstrations can be acts of civil disobedience, but they usually are not.

"Much of what you see around Seattle or around the nation is very lawful," McCann said. "It's organized in advance; a permit is requested; police then show up and help protect the protesters."

One example is January's Womxn's March in Seattle.

All of the content on these signs at January's Womxn's March in Seattle is considered protected speech.
Credit Will James / KNKX

With a crowd of more than 100,000 people, the march was likely the largest in Seattle's history.  And all of it was sanctioned with a permit and a route. Police say they made no arrests.

Whitcomb described the relationship between police and protesters at the Womxn's March as collegial. 

"You're taking photos with participants and they're thanking you and it's a very positive feeling of solidarity, even," Whitcomb said.

What The Law Says

The reason thousands of people can stop traffic and impact business on a Saturday afternoon is the First Amendment. But beyond that, the law isn't always clear.

When it comes to free speech rights, the general rule is government cannot regulate the content of speech. But it can regulate the time, place and manner of speech.

Over time, courts have tended to be more open about what kinds of actions are protected by freedom of speech, according to McCann, the UW professor. Marching, carrying signs, and even burning flags or crosses are protected forms of speech. 

But a century of case law doesn't always make it easy to determine what's lawful and what should be stopped.

"Court rulings are not actually as tightly consistent as one might want them to be," McCann said.

In practice, protest regulation usually comes down to local jurisdictions, particularly the decisions that local law enforcement makes at any given moment.

For example, demonstrations in Seattle are supposed to have a permit. Marching without one could be seen as an act of civil disobedience.

Sergeant Whitcomb said police here try to protect all expressions of free speech, even when they aren't strictly sanctioned.

"Your constitutional rights are not dependent on whether or not you took the time to fill out a form," Whitcomb said. "We're obligated to make sure that everyone has a chance to express their First Amendment rights."

There are some hard limits to keep in mind.

"That doesn't mean that a single person can walk into traffic," Whitcomb said. "That's dangerous."

It's law enforcement's job to protect both protesters and those impacted by demonstrations. That can mean anything from directing traffic or keeping the peace between counter-protests. 

Breaking The Law On Purpose

The large and spontaneous demonstration against the president's travel at SeaTac airport lasted several hours. There have been questions about the way police and other agencies handled the protest.
Credit Allie Ferguson / KNKX

The relationship between police and protesters gets a little more complicated when demonstrators intend to break the law from the start.

Whitcomb tells a story about a group doing a sit-in at a bank. He said the people leading the sit-in knew they were trespassing, and they wanted to be arrested as part of their protest. Police eventually obliged.

"We're actually participating in their act of civil disobedience," Whitcomb said. "We're fulfilling our role and function assigned to us by society."

Not everyone who gets arrested during a protest gets booked into jail. Whitcomb said they're typically released the same day.

Even when demonstrators intentionally break the law and even when the protest is against the government, police and protesters can often work together.

Since the mid-20th century, particularly the civil rights era, there has been a trend in law enforcement in learning how to manage protest rather than shut it down, McCann said.

"That kind of civil disobedience is very highly choreographed," McCann said. "The people who are doing it have done it before. The police know what they're doing, even though it looks highly disruptive and confrontational."

A lot of what protest is about is the image of resistance in order to shed light on a particular issue, McCann said. 

That means it may not be a big deal if protesters hold up traffic for a few hours or if bank-goers are inconvenienced. But it is a big deal if people are getting hurt.

This story is part of our series Unpacking Government. Have a question about government? Let us know at unpackinggovernment@knkx.org.