I commented in OllieGarkey's diary the other day regarding law enforcement response to the #OccupyWallStreet protestors doing their thing in NYC, particularly in regards to the now infamous pepper spray incident involving Lt. Tony Bologna. I sat down with my commissioned law enforcement spouse to watch clip after clip of police action from the past week or so, trying to get a feel for how appropriate or inappropriate the police actions were. What we noticed is that yes, there are several videos out there showing what we believe to be unlawful arrests or, in the case of the pepper spray incidents, egregious attacks on protestors. However, there are quite a few examples floating around out there of protestors who in one way, shape or form did something to qualify as resisting arrest or just generally being out of compliance, meaning an arrest was legally justified. My purpose with this diary is to try and lay out a very basic guideline of what you can/cannot do around a police officer, in what circumstances a police officer can make an arrest, and just some general rudimentary police response techniques that you might encounter.
Disclaimer: Although my better half is in law enforcement, I am not, and as mentioned above, neither of us are residents of NYC. Their law enforcements standards may not always jibe with those here in the state of Arkansas. Also, neither of us are lawyers, so don't take this as real legal advice.
The point is that we want these protests to be successful--we want everyone's voices to be heard. Run-ins with the NYPD distract from the message and can actually harm the image we want the public to see. So follow me below the weird squiggle, and we'll dive in to the volatile world of policing and protesting.
Firstly, if a police officer gives you a direct order to move, you do it. If you are in an allotted protest area with permits, etc., and you are only using your voice, you will be fine. Well, legally anyway. This does not hold true if you see Tony Bologna coming at you. I'm wondering if those awesome goggles we used to have to wear in chemistry class might be called for while he's still roaming the streets...
Secondly, if you touch, spit at, throw something at or otherwise take any action that can be construed as aggressive towards a cop, you will be arrested on the spot. Why? When law enforcement officers are dealing with group/mob environments, their tolerance is going to be a lot lower when it comes to actions that can be construed as aggressive. They are out-numbered and vulnerable to attack. These situations can go from a non-violent protest to an all-out riot in a flash with the right idiots leading the charge. While most people tend to think of the police as the aggressors because they're the ones with the guns and the asp batons and just generally seem better prepared for battle than the protestor who steps out of line, put yourself in their shoes. The reality is that the police academy and ongoing police training courses are teeming with images of dead cops. They watch countless videos and hear stories about officers who slipped up for just a moment and ended up with a bullet in their head, a knife to the heart or just beaten to a pulp. As much as we hope this doesn't happen in our protests, the possibility is always there. Look at London just a month or two ago. No one wants to see something like that happen here, and the cops have to deal with the possibility of such escalation happening right in front of them, putting their lives at risk. So if you are in any way aggressive, expect to be arrested for the sake of erring on the safe side. If you want to stay free, be aware that most cops are not the enemy unless you treat them as such (again, this rule does not apply to Tony Bologna).
In the above video, watch the guy in the orange shirt. I can't be certain what's going on, but it appears that the cops are attempting to establish a perimeter around another arrest, meaning they need the protestors to back up. I wish I could hear the cop's instructions to be certain it's legit, but by the way everyone else is moving, I'm 99% sure an order to step back was issued. It would have been procedure. The guy in the orange shirt is in the cop's face, meaning he's not complying with the order and he's displaying aggression. Cops are trained to take some flak, but there's a point at which continued non-compliance or aggression will be countered with detainment. You can protest. You don't have to like what the cops do, but do not get in their faces. They have the leeway to effect an arrest for such an action.
I can't tell that this guy with the flag did anything wrong. It's possible that they were telling him to get out of the street, but any orders they might have issued aren't picked up on the film. Just based solely on what you can see in this clip, it doesn't appear that he deserved an arrest. That aside, although it looks rough, the takedown is procedure. The protestor here did exactly what he should have done upon arrest. He is not resisting. He is compliant. And those cops are thankful that they're not having to struggle with him, trust me. He comes through his arrest unscathed, unlike other arrest videos I've seen where someone ends up bloodied. At this point, I'd like to move your attention to the guy in the black and white striped shirt. DO NOT THROW A PUNCH AT A COP. Need I say more?
When a cop takes your arm in an escort position (usually a firm grasp above the elbow), just go where he takes you. Officers are trained to separate people that could be a threat in order to defuse and control the situation. If you are an unruly protestor, they will most likely walk you away from the others until either you calm down or they arrest you and get you out of there. To them, the more unruly you are, the more likely it is that you'll be the flashpoint that turns the peaceful protest into a mob scene, thereby putting their own lives at risk. Keep your cool. In these group/mob scenarios police will arrest people for minor offenses that would usually only warrant a citation or a warning in an attempt to remove those perceived as instigators that could turn a protest into a riot. Just go with them. Most likely you will be transported to the station, given a little cool off period and released when you are no longer a threat. You may receive a minor citation, but being polite and cooperative with police is your best bet.
“Civil disobedience” is illegal. When an officer tries to take you into custody and you sit there and refuse to move, although you may not be a violent threat, you are still resisting arrest. At this point, an officer is authorized to use whatever force is necessary to get you into compliance. In the video above, I have no idea what led to this arrest or this woman being singled out, so I can't comment on that. However, she is resisting arrest by failing to comply (passive resistance). The officers are then in the clear to do a more physical takedown. The Use of Force Continuum that officers use is based on a "Plus One" theory. This means that an officer will use force one step up from what an offender is using. If you are sitting in the street refusing to move, that is called Passive Resistance. Most agencies then allow for the use of what is called Empty or Open Hand Control. That means that they should not use weapons, but they can use their bodies, pressure point techniques and physical force to make you comply. Some agencies allow for the use of OC Spray (pepper spray) at this point. OC spray is an intermediate weapon, but it is less than lethal, which means it can be justified pretty well any time there is a non-compliant individual that will be taken into custody. If you hit a cop, expect to get hit back and likely with batons. Again, they are working on a plus one theory and will take it up a notch.
As for Lt. OC (Balogna), when an officer uses OC spray they are required to decontaminate the individual once they have gained control. This means that after they have handcuffed and subdued the suspect, the police are required to provide water to wash away the chemicals and in many cities they are required to call EMS to oversee the decon. If OC spray is left, it can actual eat through the skin and eyes causing blindness and permanent disfiguration. This is why the infamous pepper spray incident is so egregious. Not only is there no clear cause for police action from the clips I've seen, Bologna sprayed these women square in the face (and several cops, too), turned around, and left them there to writhe in pain on the ground. The OC spray was not used as a means of gaining control in order to make an arrest. The victims (I feel the word is justified) were not decontaminated by the responsible party. These women should have their lawyers on the case already because it was way out of policy to use OC spray in such a manner. There is no excuse for that action, and from what I hear this morning. Balogna is now under investigation, thanks in large part to the continuing coverage of this incident by folks here at DKos and other blogs around the interwebs. Excellent work. He absolutely should be held accountable.
The most important thing for a non-violent protestor to remember is that the police officer standing across the barricade from you is not necessarily your enemy. Yes, there are exceptions, but for the most part, police officers are just normal people trying to make a living for their family. They are looking at a group of pissed off people that outnumber them 20 to 1 and are just worried about getting home to see their kids and spouse.
You are protesting Wall Street; the NYPD is not your problem. Follow the law, comply with the officers, and you will be alright. Also be aware that one idiot in your group can change the event immediately. Mob mentality is terrifying for police, and that one guy in the protest that wants to step out and make a statement by breaking the law will tarnish your entire group and could change a peaceful protest into a riot and a beat down. Self-policing of members is strongly advised. If the cops see that the group is trying to control the idiot few, they will respect that and will leave the group alone. When the group tries to defend and protect the idiot few, the group itself will become a target. Please understand--I am in no way defending these NYPD officers. Some of their actions were WAY out of line. However, you can reduce the risk of police involvement if you remain calm. Behave respectfully and stay focused on your mission rather than the police.
To everyone out there on the streets--stay strong, keep up the good work, and please be careful!