After Riot, Legal Reasons For Disparate Policing Prove Elusive

By Sameer Rao | January 24, 2021, 8:02 PM EST

Less than a week into the new year, Americans were confronted with the specter of insurrection as a mob echoing then-President Donald Trump's unfounded accusations of a rigged election stormed the U.S. Capitol.

Images of people smashing windows, brandishing Confederate battle flags and zip ties, intimidating and assaulting Capitol Police officers and congresspeople and committing other wanton acts of destruction flooded social media feeds and news channels for days.

Within the ensuing outrage arose a simple question: Why did law enforcement seem to handle this right-wing, predominantly white mob with far less aggressive tactics than those used against people protesting police violence toward Black Americans after George Floyd's killing this summer, or other largely peaceful protests that didn't involve ransacking a government building or fatally attacking officers?

The question persists more than two weeks after the events of Jan. 6, as the U.S. Department of Justice and other legal bodies pursue hundreds of arrests and corresponding cases against participants, with charges ranging from disorderly conduct to conspiracy. In tandem with Congress' impeachment of Trump, it appears that the insurrection is facing some legal accountability.

But even these prosecutorial actions, combined with the dispersal of those assembled by law enforcement and military personnel after the storming itself, have not dissuaded accusations of disparate and politically and racially motivated policing.

The Capitol riot response contrasts with the organized use of force and charges against protesters in other assemblies, including the use of chemical irritants and rubber bullets by U.S. Park Police and other agencies to clear Black Lives Matter protesters out of Washington, D.C.'s Lafayette Square Park before a presidential photo op this summer; federal agents' random detention of demonstrators in Portland, Oregon, around the same time; the riot charges pursued against those who protested Trump's inauguration; and myriad examples of invasive surveillance and other tactics that seemingly did not greet the Capitol mob.

"In Portland, orders from the highest levels of our federal government targeted constitutionally protected protests with politically motivated, retaliatory and excessively violent war-like tactics under the guise of federal property protection," said Christine Kwon, counsel at Protect Democracy, one of the entities representing Portland protesters. "By contrast, the response to the Capitol riot — orchestrated by supporters of President Trump unlawfully aiming to interrupt a constitutional process — was not proportionate to the known scale and threat of the violent attack on federal property and the persons on it."

Law enforcement agencies have provided little to no clarity on the differences. Many involved in policing the aforementioned assemblies, including the DOJ, Capitol Police and Portland Police Bureau, did not immediately return answers to emailed questions. Those who did were largely removed from the Capitol violence and addressed questions about disparate policing only tangentially, if at all.

A spokesperson for the U.S. Marshals Service, which supported enforcement at both the Capitol riots and nearby Lafayette Square Park dispersal, declined to comment beyond a Jan. 8 DOJ statement about then-pending charges against rioters. In that statement, Marshals director Donald Washington said, "Our deputies helped to clear the [Capitol] and escorted members of Congress back to the main chamber for official business."

The Park Police, which was reportedly responsible for much of the dispersal at Lafayette Square Park, told Law360 via email that it "is committed to the peaceful assembly and expression of First Amendment rights; however, we will not tolerate criminal activity that threatens the safety and security of the public or the places we are charged with protecting and, if necessary, appropriate law enforcement action will be taken."

Latitude in Enforcement

One possible explanation for the differences in response rests on the degree of latitude law enforcement has to respond to assemblies. Many agencies subject officers to internal protocols for handling use of force.

A spokesperson for the Bureau of Alcohol, Tobacco, Firearms and Explosives, which is reportedly investigating the explosives found near the Republican and Democratic national committees' headquarters during the riot, told Law360 via email, "ATF training includes well-established guidelines for the use-of-force, and emphasizes the need for agents to apply professional judgment in determining the appropriate level of control necessary to protect public safety when encountering suspects."

Experts say that as part of these protocols, it's important to include guidelines on avoiding the trampling of First Amendment rights.

Phil Andonian of D.C.-based Caleb Andonian PLLC, a former public defender who has represented local demonstrators who protested Trump's inauguration, cited the Metropolitan Police Department, which was largely responsible for policing the protests, and its own First Amendment protocol as an example of an appropriately deferential policy.

Alongside the individual agency latitude to respond to assemblies is the latitude to work together. There is precedent for interdepartmental collaboration, according to former Seattle Police Department chief Norm Stamper, who authorized and later publicly regretted the use of tear gas against anti-globalization protesters at the 1999 World Trade Organization Ministerial Conference.

A spokesperson for the U.S. Drug Enforcement Administration, which reportedly was granted authority for surveillance of Black Lives Matter protesters this summer, said it wasn't involved in the Capitol riot and simply offered an emailed statement: "DEA resources are only deployed in situations when requested by the lead agency and approved by the Department of Justice."

Steven Sund, who resigned as Capitol Police chief 10 days after the insurrection, said in a statement before departing that the department "had a robust plan established to address anticipated First Amendment activities."

Professor Christopher Schmidt of Chicago-Kent College of Law, who has written extensively about the history of civil rights and the courts, said the idea that Capitol insurrectionists sought to overturn the election is complicated by the rioters' incoherent and sometimes-conflicting aims. However, he suggested perception impacted the response to assemblies, whether in police action or subsequent charges, maybe more than anything else.

"So much of what governs the policing of protest is publicity and norms," he told Law360. "What police can and will actually do is going to be very much constrained by the visibility of the protest, when there are cameras on and media attention."

While Stamper suggested possible concern around the optics of deploying National Guard troops, he and others recognized that law enforcement has authority to use force once things become violent, as they did at the Capitol.

"There's clearly a point at which the scene turns from, if you're looking at it objectively in the moment, a gathering that's an allowed demonstration, and then it's an assault on the individual officers, the Capitol building itself and the people who were inside it," Andonian told Law360. "At no point after that line is crossed are the police hamstringed in any way from responding in trying to control it within lawful bounds."

Questions Over Prosecution

Protesters and their legal representatives, in turn, most frequently defend nonviolent actions for which they're policed or charged under the First and Fourth amendments. Kwon said that while the U.S. Code allowed deployment of federal agents to protect federal property, "The conduct of the [Department of Homeland Security] agents in Portland far overstepped the bounds of their statutory authority under that law."

DHS, which reportedly sent personnel from various subagencies to Portland and the Capitol, told Law360 via email, "We fully support the Constitutional right to peaceably assemble and exercise free speech. Unfortunately, we have seen protests at federal facilities escalate into wanton destruction, vandalism, and violence directed at [Federal Protective Service] officers. In these instances, FPS officers have continued to carry out their duties, ensuring the security of federal facilities and the safety of employees and visitors."

Proving a violation of constitutional rights can also be difficult. Scott Michelman, legal director at the American Civil Liberties Union of D.C., noted that he and his colleagues' case against Trump and different police and military leaders, related to the clearing of Lafayette Square Park, does not try to cite the 14th Amendment's equal protection clause because of a high evidentiary threshold.

"Those claims are very, very hard to raise," he told Law360. "In order to make a successful equal protection claim, in the absence of a smoking gun — say, where a decision maker says, 'I'm arresting people because they're Black' — courts require very specific comparison to people who were similarly situated and treated differently."

Even prosecution of police officers by other law enforcement officials can face hurdles. When Philadelphia District Attorney Larry Krasner, known for his professed support of civil liberties, tried to prosecute an officer for allegedly assaulting protesters during Black Lives Matter protests, a preliminary hearing ended with a judge dropping the case.

"That says more about the criminal legal system generally than it does this case," Krasner's spokesperson told Law360 via email. "We intend to re-file the charges against this police inspector within the 60-day limit for doing so."

Despite charges against Capitol rioters, several experts observed that the enforcement from that day not only exposed less-visible disparities, but also raised further concerns about legal discrimination.

"One important distinction I would make is that what we are seeing now is a prosecutorial response," Carl Takei, a senior staff attorney for the ACLU's Trone Center for Justice and Equality, told Law360. He compared this approach to that of the J20 protests, which he said involved police "kettling" demonstrators before making mass arrests that led to prosecution.

Takei also expressed concern that law enforcement's use of facial recognition technology as well as the "rebranding" and reintroduction of anti-protest law proposals in state legislatures to address the Capitol riots would end up disproportionately impacting communities of color.

"The government doesn't need more tools to respond to incidents like the Capitol insurrection," he said. "The reason why the Capitol insurrection proceeded as it did is because of the incorrect assumptions that police made about the intentions and actions of a white crowd.

"And that's white supremacy at work."

--Editing by Aaron Pelc.

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