“Newly unearthed body camera footage captured by Boston police during the demonstrations protesting racial injustice and police brutality in May shows officers using force against nonviolent protesters, pepper-spraying crowds, and, in one instance, speaking about hitting protesters with a car.
The clips are at the center of a report published Friday by The Appeal, a national online news and commentary website that focuses on how the legal system, policies, and politics affect the country’s most vulnerable populations.”
“Unlawful assembly” is like “illegal writing” or “forbidden religious exercise”: There surely may be such a thing, but what qualifies?
Recent weeks have produced a lifetime’s worth of haunting images. Some of them everyone has seen: black-clad “agents” hustling citizens into unmarked vans, “counterdemonstrators” with automatic weapons dogging Black Lives Matter protests. Others I have seen in person: on a recent trip to Portland, Oregon, groups of mothers marching in front of a federal courthouse to protect protesters who had been gassed and beaten during previous demonstrations; on a stroll through a neighborhood park in my small hometown of Eugene, Oregon, a dozen masked “security guards” with assault rifles offering protection to anti-police-violence protesters.
And the backdrop to all these sights is the indelible image of a flag-draped coffin bearing the body of Representative John Lewis on his final trip—this one over a path strewn with rose petals—across the Edmund Pettus Bridge, in Selma, Alabama.
Lewis’s cortege recalled a scene from half a century ago—one that echoed strangely amid the alarms and cries of this haunted July.
On Sunday, March 7, 1965, Lewis and Hosea Williams led a peaceful crowd of some 600 marchers across the Edmund Pettus Bridge. It was a march for voting rights—but it also was a protest against police violence, in particular the police killing of a 26-year-old man, Jimmie Lee Jackson, who was beaten and then shot twice in the back during a voting-rights march on February 18 of that year.
That March day, on the other side of the bridge stood hundreds of Alabama state troopers, sheriff’s deputies, and mounted “possemen” (white locals “deputized” by Dallas County Sheriff Jim Clark). They were armed with rifles, tear gas, batons, and cattle prods. “It would be detrimental to your safety to continue this march,” Alabama State Police Major John Cloud announced. “And I’m saying this is an unlawful assembly. You are to disperse.”
The subsequent violence became known as “Bloody Sunday,” and the shock waves it sent across the country transformed the national debate about voting rights for Black Americans.
The words that echo in 2020 are “This is an unlawful assembly.” This summer, police in Oregon have been “declaring riots” almost every night. And Oregon is not even on the cutting edge: The mayor of one southern hamlet, Graham, North Carolina, recently “suspended” all protests, out of a professed fear that demonstrations against Confederate monuments would lead to violence. Similarly, the troopers who brutalized the crowd of unarmed men, women, and children on Bloody Sunday saw themselves as enforcers of the law. But, textually, the words unlawful assembly embody a tension, even a contradiction—because the First Amendment, in its very terms, protects “the right of the people peaceably to assemble.” So “unlawful assembly” is like “illegal writing” or “forbidden religious exercise”: There surely may be such a thing, but, in each case, the burden has to be on the authorities to explain why this assembly, this writing, this religious exercise is an exception to the broad protection afforded to these important political rights.
By the logic of unlawful assembly, John Lewis had it coming. He and the marchers had gathered without permission. They had blocked a highway. Told to go home, they stayed. And violence followed. If you want to get technical, the marchers didn’t commit the violence—it was committed by the police and the local white toughs who hung around the fringes of the march. But the marchers had gathered in a place where the police didn’t want them. As one local white official explained to Martin Luther King Jr. in the aftermath of the march, “Everywhere you have been, there has been violence.”
Police and demonstrators during the march on the courthouse in Selma, Ala. on March 13, 1965. (AP)
Some scholars have argued recently that Americans have lost sight of “peaceable assembly” as an important constitutional right. One of them is Tabatha Abu El-Haj, a professor at the Drexel University Thomas R. Kline School of Law, whom I spoke with last week. Abu El-Haj has written extensively about the First Amendment and the right to assemble in particular, including a 2009 article called “The Neglected Right of Assembly.” Abu El-Haj explained to me that while England maintained a relatively tight leash on popular assemblies, the experience of the American Revolution convinced early Americans of the importance of “the people out of doors” as part of citizenship and political participation. Marches, open-air meetings, and protests were routinely held on public property during the 18th and 19th centuries. Not until 1914, in fact, did New York, by then a city of 2 million, even begin to require permits for these marches.
Abu El-Haj said that contemporary First Amendment doctrine has concentrated on freedom of speech, treating the right of groups to assemble as merely a subset of the right of individuals to speak. That’s not in accordance with the words of the Constitution, she pointed out. “Courts should take a textual approach and thus disaggregate peaceable assembly from freedom of speech,” she said.
Of course, even in the heyday of the right to assemble, governments had the power to shut down riots. But the threshold for “reading the Riot Act” was the risk of serious violence—something equivalent to today’s Brandenburg test for incitement to crime. That formulation, announced by the Supreme Court in the 1950s, empowers the government to punish speech as incitement only when it is “directed to and likely to cause imminent lawless action.” By general agreement, lawless action means something more serious than jaywalking, peacefully blocking sidewalks and streets, or even cursing and taunting police.
In addition, Abu El-Haj said, crowds should not be declared “unlawful” unless they are violent and they refuse to disperse after a clear warning. She cited as examples the protests in Philadelphia in late May and early June, in which some marchers burned police vehicles and set fire to or looted stores. “That’s a different situation from much of what we have seen in the last few weeks—largely peaceful protests with violent behavior at the fringes,” sometimes by people who “are there to disrupt the protest,” she said.
Abu El-Haj’s words were echoed by John Inazu, a professor at the Washington University at St. Louis School of Law, who recently wrote an article decrying the overuse of unlawful-assembly laws as “social control.”Over time, he argued, local governments have lost sight of the idea that protest is presumptively protected, and have rewritten unlawful-assembly laws to permit the government to shut down even peaceful protests when they find them inconvenient. Last year in The Atlantic, Inazu noted:
Local officials too frequently end protests prematurely or move them to distant locations where they will be less effective. Lawmakers overregulate nonviolent groups that resist majoritarian norms. And many Americans cede too easily to the demands of conformity rather than pursuing and protecting alternative visions of society.
In an interview last week, Inazu told me that many local officials also pay no political or legal price for stopping protests prematurely. “The ability to overpolice or shut down the protests when they should be allowed to continue really advances the objectives of local government.”
Courts have done little to intervene in these choices, he said; there is “virtually no [legal] doctrine on the right of assembly.” Courts should require local governments to show that real disorder is imminent, rather than allowing premature shutdowns, he argued. “Local governments have to take some degree of risk” of disorder before eliminating protests, rather than using unlawful assembly as a phrase meaning “inconvenient.”
The withering of the right to assemble may flow from public attitudes, which have not been particularly tolerant of protest and have become far less tolerant recently. That’s the view of Timothy Zick, a professor at the William & Mary Law School, who has been writing for a decade on regional variation in interpretations of the First Amendment, including local regulation of where people may assemble. Zick notes that many localities now levy hefty charges against protesters to pay for the cost of policing them; many people, he says, find that a reasonable idea, even though it may make even the most determinedly nonviolent citizens, faced with potentially ruinous costs, forswear any public activity. And others have suggested that protests at night are suspicious in themselves. Why is that? Zick asks. “The First Amendment applies when the sun goes down. It doesn’t take a nap.”
Last month, the former Republican National Committee chair Michael Steele suggested that the Portland protesters should prevent criticism from Donald Trump by moving their protests away from the federal courthouse.
Groups of mothers form a wall to protect protesters in Portland, Ore. in July (Alex Lourie / Redux)
Clever, eh? If the government abuses you, go somewhere you won’t make the government mad. That idea, to my mind, stands the ideals of free speech and assembly on their head. The federal courthouse—where federal power is publicly displayed and exercised—is the kind of place where protests, by logic and history, are supposed to take place. When the people assemble in such a place, the government should not greet them right away with militarized threat of force. It should not ever remove them unless it has first made a serious effort to protect their right to be heard—and to separate the violent from the peaceable. And government officials, such as the president and the attorney general, should not be in the business of slandering and misrepresenting the majority of the peaceable.
Demands that protesters “denounce violence” also miss the point. Emerson Sykes, one of the American Civil Liberties Union attorneys challenging the protest ban in Graham, North Carolina, points out that the protests in America represent “a historic moment”—a challenge to ingrained brutality and racism in our police and justice systems. Protesters who themselves commit no crimes have the right to focus on that aim; ritual self-purification is an inappropriate demand—particularly in 2020. A government that itself cannot denounce neo-Nazis invading state capitals has no standing to demand that others apologize for the sins of third parties.
And that takes me back to Selma. It seems like distant history. Yet today, in America, people are in the street fighting for the very same things that the marchers on Bloody Sunday wanted—an end to police violence and free elections. The real scandal is that these basic values remain under siege more than half a century after blood ran on that Alabama bridge.
“A Buffalo, New York, police officer who was videotaped calling a bystander an obscene, sexist term has been removed from his post for now.
Buffalo Police Department Commissioner Byron Lockwood suspended Lt. Michael Delong and launched an investigation, Mayor Byron Brown confirmed in a statement Monday.
“There is no place for that type of reprehensible conduct in the Buffalo Police Department and it will not be tolerated,” Brown said.
Ruweyda Salim, who filmed police stopping a man this week at a 7-Eleven, is seen on video confronting Delong about the amount of cops present to detain one man. Delong said the man had two crack pipes and attacked his mother. He told her that the suspect was violent and holding a weight in his hand.”
LOUISVILLE, Ky. — Criticism of Louisville Metro Police is mounting as the March shooting death of Breonna Taylor, a 26-year-old Louisville ER technician killed in her own home has come under national scrutiny.
Police officers entered Taylor’s home in the early morning hours of March 13 as part of a narcotics investigation, with officers returning fire after one of the members of the Criminal Interdiction Squad was shot in the apartment.
Taylor was struck at least eight times, dying in the hall of her apartment.
“It felt like no one was listening,” Tamika Palmer, Taylor’s mother, said on Memorial Day. “Like no one cared what happened here. … It was frustrating. It was lonely. It was miserable.”
Two months after she died, Taylor’s death became a national story, with activists, celebrities and members of Congress speaking up about her death. Since then, the FBI has opened an investigation into the case, charges stemming from that night against Taylor’s boyfriend have been dropped and hundreds of protesters have taken to Louisville streets, demanding justice for Taylor.
Louisville Metro Police Chief Steve Conrad has been fired, following a separate police shooting June 1 where officers had not turned on their body cameras, violating police policy. David McAtee, the owner of the popular YaYa’s BBQ in the Russell neighborhood, was fatally shot.
Records show that Taylor was not the main target of the investigation, but she and her apartment were specifically named on the search warrant that led police to her home that night. Taylor’s boyfriend, Kenneth Walker, was not named on the warrant or the investigation.
No drugs were recovered from the apartment.
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A defense attorney for Walker has claimed in court filings that Walker fired in self-defense, believing the home was being broken into because police didn’t announce themselves.
Spokespeople for the police department have declined to answer many questions about the case, citing an ongoing internal investigation into Taylor’s shooting. But, they did say officers announced their presence.
Taylor, 26, was an ER technician who had worked at two area hospitals, Palmer told The Courier Journal. Taylor had previously worked as a certified EMT, and aspired to further her career in health care.
Palmer saidTaylor was a young woman who adored her family above all else and who had made plans to succeed.
“She had a whole plan on becoming a nurse and buying a house and then starting a family. Breonna had her head on straight, and she was a very decent person,” Palmer said. “She didn’t deserve this. She wasn’t that type of person.”
Family members described her as kind, hardworking and honest and that they were angry she was dead at age 26.
“She really did not deserve to end her life so horrifically,” said Taylor’s aunt, Bianca Austin.
Her death has raised questions about why police waited until 12:40 a.m. to serve the warrant and fired more than 20 rounds into her home, particularly, activists and attorneys have said, since Taylor and her boyfriend were not the main subjects of the search warrant.
The warrant did include Taylor’s home and had a “no-knock” provision, meaning that police could enter her house without identifying themselves as law enforcement. However, LMPD officials have said the officers knocked and announced their presence before using a battering ram to enter the home.
Taylor’s address was listed in the warrant, records show, based on police’s belief that one of the narcotics investigation’s main suspects, Jamarcus Glover, used her home to receive mail, keep drugs or stash money earned from the sale of drugs.
A detective wrote in an affidavit summarizing the investigation that led to the warrant that Glover walked into Taylor’s apartment one January afternoon and left with a “suspected USPS package in his right hand,” then got into his car and drove to a “known drug house” on Muhammad Ali Boulevard.
Jaynes verified through a U.S. postal inspector, according to the affidavit, that Glover had been receiving packages at Taylor’s address.
A U.S. postal inspector in Louisville, however, previously told WDRB News that LMPD didn’t use his office to verify that Glover was receiving packages at Taylor’s apartment.
Postal inspector Tony Gooden told WDRB that a different agency had asked in January to look into whether Taylor’s home was receiving suspicious mail, but that the office had concluded it wasn’t.
Attorney Benjamin Crump, a Florida-based attorney known for his involvement in high-profile cases of black Americans killed in shootings, wrote in a news release that Gooden’s statement “directly contradicts what the police stated in the affidavit to secure a no-knock warrant for her home.”
A lawsuit filed recently by Taylor’s family against the three LMPD officers involved in her shooting says police had identified Glover at a home more than 10 miles from Taylor’s before police executed the warrant at Taylor’s residence.
No body camera footage is available, Conrad said in the aftermath of the shooting, because his Criminal Interdiction Squad does not use that equipment.
Prominent civil rights attorney Ben Crump has been hired by the family of a black woman who was fatally shot by Louisville, Kentucky police in her home. Breonna Taylor, was killed on March 13th. (May 13) AP Domestic
What is a ‘no-knock’ warrant?
Police can seek “no-knock” entry, meaning they don‘t have to identify themselves before entering a residence or business, if there is a reasonable suspicion that knocking would be dangerous, futile or inhibit the “effective investigation of the crime,” LMPD’s policies state.
In this case, police said it was necessary at Taylor’s house because “these drug traffickers have a history of attempting to destroy evidence, have cameras on the location that compromise detectives once an approach to the dwelling is made, and have a history of fleeing from law enforcement.”
Taylor had no criminal history and Walker had no felony charges before the night of the shooting.
Civil rights advocates have long complained that no-knock warrants are dangerous and unnecessary.
Even with the no-knock warrant, Louisville police have said they identified themselves before using a battering ram to enter Taylor’s residence.
Representatives for Walker and Taylor’s family say that isn’t true, and that neighbors have said the same.
On May 22, Jefferson County Commonwealth’s Attorney Tom Wine played a partial recording of statements from Walker during a press conference. Walker said he and Taylor heard a loud banging on the door, and yelled out asking who was there. Walker said they heard no response, so he grabbed his gun, feeling “scared to death.”
They got out of bed and were going toward the door when it “comes off its hinges” and Walker fired one shot, still unable to see, he told police.
What happened when police entered?
Two officers and one sergeant entered Taylor’s home “without knocking and without announcing themselves,” the lawsuit claims.
At least two other police officers, a lieutenant and an officer, were on the scene as a part of executing the warrant that night. However, LMPD officials named only the three who used their guns.
Taylor and her boyfriend, Walker, woke up to the unannounced entry and believed their home was being broken into, according to the suit.
“While police may claim to have identified themselves, they did not. Mr. Walker and Ms. Taylor again heard a large bang on the door. Again, when they inquired there was no response that there was police outside. At this point, the door suddenly explodes. Counsel believes that police hit the door with a battering ram,” Rob Eggert, who is defending Walker, wrote in a motion.
Walker, acting in self-defense, according to Eggert, then fired one gunshot, hitting LMPD Sgt. Jonathan Mattingly in the femoral artery in his thigh. Police have said Mattingly later underwent surgery and was expected to make a full recovery.
After Walker’s shot, LMPD officers returned fire, police say.
The lawsuit says officers “failed to use any sound reasonable judgment” and fired “more than 25 blind shots into multiple homes.”Bullet holes werefound in at least one neighboring apartment unit.
Eggert has said he inspected the apartment building on Springfield Drive where Taylor lived and found evidence of 20 gunshots fired into the building, some of which entered other apartments.
During the gunfire, Taylor was struck at least eight times and died.
A search warrant that police obtained to search Taylor’s home less than three hours after she was killed indicates that police may have believed it was Taylor, not Walker, who shot at police.
The statement in the warrant’s affidavit says a “subject inside the residence was armed with a(n) unknown gun and fired a shot striking a detective. In the course of protecting themselves and other civilians, detectives returned gunfire and struck the subject (an) unknown number of times. The subject collapsed inside the listed residence and subsequently (was) pronounced deceased on scene.”
During Wine’s press conference, he revealed that Walker initially said Taylor was the shooter.
In a clip of Walker’s recorded interview, played Friday, he was heard explaining that he said that because he was scared.
“I had no reason to say it, like I say, my gun is legal and everything,” he said. “Clearly, I was scared. I don’t know.”
Wine explained after the clip that he thought it was “important that the public knows” the information Walker initially provided police because police documents listed Taylor as a suspect, despite the fact she was unarmed.
“Police were not trying to disrespect Ms. Taylor in any way,” Wine said. “They were acting on the information that was given to them by Mr. Walker.”
According to Walker’s arrest citation, he gave a statement shortly after the incident stating that he was the sole person to fire a weapon in Taylor’s apartment.
What happened after Taylor’s death?
At a press conference the day of Taylor’s death, police said they were opening an internal investigation into the shooting and had placed the three officers involved on administrative reassignment.
Officials, who had yet to name Taylor, said she was shot and killed after three LMPD officers returned fire in her home. Walker, 27, was charged with attempted murder of a police officer, they announced.
Citing the ongoing investigation, officials said at the time it wasn’t known if Taylor was armed, or how many shots the officers and the suspects had fired.
Walker, later that month, was released from jail on home incarceration — infuriating the president of FOP Chapter 614, which represents Louisville Metro Police officers.
President Ryan Nichols said in a news release that Jefferson Circuit Judge Olu Stevens’ decision to release Walker, who also faced a first-degree assault charge, was a “slap in the face to everyone wearing a badge.”
Stevens’ decision was made over the objections of the Commonwealth’s Attorney’s Office, whose prosecutor argued that “one person is dead, and one person was almost killed due to Mr. Walker’s actions.”
But Eggert, Walker’s defense attorney, said it was really officers who were the danger: “In this case, the threat to the community came not from Kenneth Walker, but from police.”
“Had Breonna Taylor been killed by anyone except police, the person or persons responsible for her death would have been charged with a homicide,” Eggert wrote in a motion. “Kenneth Walker III is an innocent victim of police misconduct.”
What is the status of the investigation?
On May 20, Mayor Greg Fischer announced on Twitter that LMPD’s Public Integrity Unit provided its investigative file to the office of Kentucky Attorney General Daniel Cameron.
Because Wine’s office recused itself from the case, Cameron’s office or a special prosecutor he appoints will decide what, if any, criminal charges
the officers should face for the night Taylor died.
Fischer also announced that the FBI and U.S. Attorney were provided copies of the investigation.
Should there be any additional requests, Fischer said, the PIU will handle the follow-up.
Additionally, the FBI announced on May 21 that it would open its own independent investigation into Taylor’s death.
Walker remained on home incarceration for nearly two months following the shooting.
But as Taylor’s death gained attention, so did calls for Walker’s criminal charges to be dismissed. A GoFundMe for his legal defense raised more than $210,000, and Metro Councilwoman Jessica Green, D-1st District, called him a “hero” for trying to protect his girlfriend.
“I believe that additional investigation is necessary,” Wine said.
But Wine said Walker’s case could be presented to a grand jury a second time, depending on the results of investigations by the FBI and Kentucky Attorney General’s Office.
Still, Walker’s attorney, Rob Eggert, said he was “thrilled” by the dismissal.
“Theoretically, they can bring it back,” he said, “but now he is freed from home incarceration and can go on with his life.”
What do we know about the involved officers?
Three LMPD officers were involved in serving the warrant on Taylor’s home: Sgt. Jonathan Mattingly and Officers Brett Hankison and Myles Cosgrove.
Mattingly was shot in the leg and taken to University of Louisville Hospital, where he underwent surgery. All three have been placed on administrative leave pending an internal investigation.
Cosgrove was previously sued for excessive force by a man he shot in 2006 at a Speedway gas station in the East End after the man allegedly backed his car toward the officer at a high rate of speed. A federal judge eventually sided with Cosgrove in the case, according to court records.
The suit also claims that Hankinson “has a prior history of unnecessary force and corruption within his employment,” and that his use of force history documents “dozens of situations where he has sent citizens to the hospital for injuries from being tased, pepper-sprayed and struck repeatedly in the nose and eyes.”
Have any policies changed since Taylor’s death?
New policy changes will require greater use of body cameras by Louisville police and more scrutiny of no-knock warrants.
Fischer announced the updates on May 18, saying that all no-knock warrants will now require the police chief or his designee to sign off on them before going to a judge for final approval. This, he said, will provide “an additional level of scrutiny.“
Under the changes:
A report will be completed each time a judge signs a no-knock warrant, regardless of whether it was served.
The commanding officer signing off on a search warrant will review the investigative materials prior to its approval “to ensure sufficiency of the investigative preparation and probable cause to support issuance.”
Nonuniformed officers entering a home will wear a vest, jacket or other visible indicator that they are police.
Any search warrant where forced entry is expected will have to have a uniformed officer and marked police vehicle respond.
A no-knock warrant will need department approval from the chief or his designee, in addition to a lieutenant and the division commander.
All no-knock warrants will be served by the SWAT team.
All no-knock warrants must be served between 8 a.m. and 10 p.m., “unless exigent circumstances exist.”
Additionally, Fischer said the department’s body camera policy will now require all sworn officers to wear cameras when serving warrants or in any situation in which they will identify themselves as police officers.
The policy now specifically states that even officers in an investigative unit will be required to activate their body cameras “for all law enforcement activity.”
“When executing a search warrant, the (wearable video system) will be activated during entry,” it states.
The changes come in response to two major concerns in Taylor’s death: that police were acting on a no-knock warrant, and that those officers were not wearing body cameras.
But Louisville Metro Council has moved forward with legislation, dubbed “Breonna’s Law” to permanently curtail the approved uses of no-knock warrants.
Under the proposed ordinance, which passed through the council’s Public Safety Committee on June 3, no-knock warrants could only be sought when there is “imminent threat of harm or death” and would be limited to offenses including murder, hostage-taking, kidnapping, terrorism, human trafficking and sexual trafficking.
It additionally codifies expanded use of body cameras and would set into statute approval of no-knock warrants by the chief or his designee.
“Louisville has the opportunity to lead the way in ensuring black communities will no longer have to suffer under the weight of injustice. Before this community starts to heal, we must rectify harm that has been done,” said Keturah Herron, a field organizer with the American Civil Liberties Union of Kentucky, who spoke at the committee meeting in favor of banning no-knocks.
“Part of that reconciliation is passing legislation and getting rid of practices that continue to terrorize and harm communities,” Herron said Wednesday.
The legislation is expected to be voted on by the full Metro Council Thursday.
Chris Hayes on video of Buffalo police pushing elderly protester: “In just those 15 seconds, that scene is an entire syllabus on how the culture of policing is broken. What has happened to it, and how it operates, and how it has essentially created a whole that is worse than the sum of its parts.” Aired on 6/5/2020.
