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Law professor contextualizes current protests and the police response

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Professor Alan Chen of the University of Denver’s Sturm College of Law. - COURTESY ALAN CHEN
  • Courtesy Alan Chen
  • Professor Alan Chen of the University of Denver’s Sturm College of Law.
Nationally, scores of ongoing, mostly peaceful protests against police brutality and systemic racism were triggered by the May 25 death of George Floyd, a 46-year-old Black man, after his violent detention by Minneapolis police was captured on video.

Subsequent police reactions to protests have raised constitutional questions.

Officers from the Colorado Springs Police Department fired tear gas and rubber bullets at protesters on several occasions, and protesters have argued some police actions were unprovoked — though Mayor John Suthers has said vandalism during the first nights of protests would cost the city tens of thousands of dollars.

Notably, one viral video from Saturday, May 30, appears to show multiple police officers hitting a man on the ground while he is being handcuffed and after. Police Chief Vince Niski has said that incident will be investigated by the department.

Denver has seen protests on a much larger scale, with thousands taking to the streets in the weeks after Floyd’s death. A federal judge recently ordered restrictions on the Denver Police Department’s use of tear gas and rubber bullets against protesters, after plaintiffs gave graphic accounts of police-inflicted injuries during protests in the Mile High City.



To provide some historical and legal context to the current moment, we talked with Professor Alan Chen about the constitutional implications of law enforcement’s reactions to protests across the country.

Chen teaches constitutional law at the University of Denver’s Sturm College of Law. A former staff attorney with the American Civil Liberties Union,
he specializes in free speech, federal courts and public interest law.

Indy: How do recent protests, and subsequent police crackdowns against protesters, fit into a historical First Amendment context?

Chen: Since we’re living in the moment of this current set of protests, it’s a little bit hard to put it into perspective this soon while it’s still going on. But there’s long been a tension between the police’s power to control public order and the First Amendment rights of peaceful protesters, and it generally happens in times where the tensions bubble up ­— typically in times where there’s heightened awareness of an intense political issue at the national level.

You’ve probably seen a lot of references to the 1960s and civil rights protests and the anti-Vietnam War protests, which were going on fairly regularly during the late 1960s and early 1970s. That’s another example of a time when there was a lot of national tension over both civil rights and the United States’ involvement in Vietnam.

Those tended to be sort of slow burns — like the Civil Rights Movement was obviously going on since basically the mid-20th century, and the Vietnam War had been going on quite a long time before the public opinion turned against the United States’ participation in the war. I think it’s relatively rare for something to bubble up this quickly in terms of the current protests.



Having said that, George Floyd’s murder is not the beginning of this movement, obviously. The Black Lives Matter movement really started several years ago after Trayvon Martin’s death, and to some extent you could trace it all the way back to the police abuse of Rodney King in 1992, so it’s something that I think has been brewing for a while. ... The graphic and awful visual evidence of the police murdering George Floyd, I think, just brought it to the forefront of everybody’s consciousness right now. And so you could look at it as the Floyd incident being the precipitating event, but it’s something that has been in the public consciousness, bubbling up underneath the surface, for quite a while now.
Do you think attitudes about the way police treat protesters are also shifting?

It’s hard to say if they’re shifting in any concrete way. There have always been incidents where police have exceeded their authority to address peaceful protesters. I’m sure you’ve seen images of civil rights protesters in the Southern states in the 1960s being attacked with high-powered fire hoses, and the police dogs, even though they were doing nothing but peacefully marching.

There’s always sort of a tension between ... the police trying to control public order and, in many cases, historically we’ve seen police overreact to peaceful protests. I don’t want to speculate about the reasons for that. There could be all sorts of reasons. It might be that the police are not adequately trained to deal with certain mass-scale peaceful protests, which don’t come up that often, and so it may not be within the experience of many officers who are trying to address this.

It might be that many police officers might feel under attack right now, because the underlying issue that the protesters are talking about is about police misconduct itself, and so some police officers may feel somewhat defensive because they feel like they’re under siege, their profession is under siege. ...It’s hard to generalize because obviously every person, every officer’s going to have his or her own individual motivations.

...Also, mass-scale public protests, even if they’re peaceful, I think there can sometimes be a sense of not just the embattlement that I was talking about a second ago, but just the idea of police may be feeling a little overwhelmed by the numbers of people that are out. They’re not used to dealing with mass crowds like this, all across the country. ...Even if they should be anticipating it... that’s not a big part of their day-to-day lives as police officers.

The First Amendment protects a citizen’s right to peacefully protest. - GRIFFIN SWARTZELL
  • Griffin Swartzell
  • The First Amendment protects a citizen’s right to peacefully protest.

What are some of the key differences between the police response to these protests and past protests?


I’m not sure that there are. ...It’s unclear whether there has been more police brutality in these protests than ... in the 1960s or during the aftermath of the Rodney King [incident]. And so I hesitate to comment on that, just because it’s really an empirical question that we don’t yet know the answer to. I think it’ll take a while after the dust settles to figure out the [extent] of police misconduct.

What is different, I think … is the sort of widespread availability of cell phone cameras, video cameras. We relied in the 1960s on the three major television networks to show us what was going on, in terms of video evidence of how civil rights demonstrators were being treated by the police. Even in 1992, of course, cell phones were not widely available, and now … pretty much anybody can pull out their phone and record what’s going on.

...That technological development has been an important change in terms of monitoring police misconduct. The George Floyd incident itself, of course, is an example, and the many recent incidences of police-on-Black violence have been caught on camera, and it’s harder for the police to deny what’s going on when there are multiple videos of the events that transpired.

...It’s a positive change, because I think it will enhance police accountability. There’s actually a battle going on in the lower courts that hasn’t reached the Supreme Court yet, about whether there’s a First Amendment right for people to record police as they conduct themselves in public — and the trend in lower courts has been to say that yes, there is a right to record police. And I think that has been an important legal development on top of the technological development of having cell phone cameras.

We’ve seen stories in the news of many people being arrested for violating curfew. Is that really shocking from a historical perspective, or have we seen this happen in the past?

Specifically with regard to curfews, and I don’t have numbers to compare, there have always been ... overreactions to large, peaceful protests. Ostensibly, the curfews were to help maintain public order and to prevent any sorts of isolated incidents like the occasional looter or somebody committing an act of vandalism.

But yeah, I think that arresting somebody for violating a curfew who has done nothing else seems significantly out of proportion to a reasonable response.

Typically a reasonable police response would be to … disperse the crowd, but disperse it in a peaceful way, not firing tear gas and rubber bullets. Because the danger to the public in those situations seems to be, at least in these recent incidents, more from the police than it is from the protesters.

...Civil disobedience has a long history in our country. It doesn’t mean that by doing something you can’t get a ticket or can’t get fined. It was technically illegal for Rosa Parks to not ride in the back of the bus, and she started a boycott, the Montgomery bus boycotts. And staying out late after a curfew could be a similar act of resistance, but it’s not one that creates any huge public danger.

So being arrested for that, or being subject to physical altercations from the police because of that, seems way out of proportion to any harm that might be threatened.

Protest signs in Colorado Springs. - GRIFFIN SWARTZELL
  • Griffin Swartzell
  • Protest signs in Colorado Springs.

I’m sure you’ve heard about the situation where President Donald Trump was supposedly wanting to have his
photo taken in front of a church near Lafayette Park, and there was an order to clear the park using tear gas and force. Does that pose constitutional questions?

Oh yeah, for sure. As far as I can tell from what I read about it, all those protesters were there lawfully. They were in a public space. It’s called a public forum, which is an area of government property that’s typically open to protests, and obviously Lafayette Park, being so close to the White House, is a fairly commonly used protest site.

And so physically dispersing [protesters] with tear gas ... if there was no other justification other than to allow the president to have his photo op — that is not a significant enough justification to clear out a crowd of protesters in a public forum.

So yeah, there’s no question about the constitutional implications of the law enforcement officers’ actions in that incident. And the other thing about these types of high-profile, militaristic police actions against protesters: It’s not just about the protesters who are on the scene. ...Let’s say you’re a person who’s upset about what’s going on, and you want to make a sign and march and protest. When you see that kind of thing on television, you might be deterred from going out in the first place, because you’re worried about being abused by the police.

So it has an effect not just on the protesters who were there, but on people who might otherwise show up to protest. This is called, under the First Amendment law, a “chilling effect.” The government’s militaristic presence may very likely be deterring people from protesting at all. And that’s another important impact on freedom of speech.

That kind of ties into Trump’s proposal to use the military for clearing protests and some of the subsequent blowback from military leaders.

I’m not an expert on military power, but it does seem like that would have been an unprecedented use of the military, basically against civilians who are exercising their rights under the First Amendment to engage in free speech ... which is, again, way out of proportion for what was either needed or would be even reasonable.

Given that these are the actions of the president, do you worry about a decline into authoritarianism by the administration?

I think that any time the government is exerting the full power of the military against its own citizens, it creates a dangerous specter of authoritarianism in ways that I don’t think we’ve seen in this country before.

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