The role of the U.S. government in the law enforcement response to protests

A new report published by the Niskanen Center discusses some possible strategies that the U.S. federal government can use to help law enforcement better respond to protests and crowded events. When responding to protests, law enforcement officers are expected to apply proportional and impartial strategies to preserve public safety but also protect constitutional rights of free speech and assembly. There are many deficiencies in the current way that law enforcement responds to protests, though, including: 1) patterns of disproportionate response, such as tendencies to both under- and over-respond to public safety threats; 2) reliance on outdated training, strategies, and tactics; and 3) providing guidance to state and local agencies that lacks an evidence base.

The law enforcement response to protests varies a lot by locality, but the federal government can help shape this response both directly and indirectly. As a direct form of assistance, the federal government can respond to protests on federal property or in and around federal buildings. For example, federal law enforcement agencies typically are responsible for policing protests that occur in Washington, D.C., as it is a federal district. Federal law enforcement can also be called on to provide mutual aid in communities. When it comes to indirect assistance, the federal government can play a role by training state and local police agencies on responses to crowd management and civil disturbances, something that is offered by many federal agencies. For example, the Federal Emergency Management Agency (FEMA) provides training to law enforcement agencies at local, state, and federal levels, while the Federal Law Enforcement Training Centers (FLETC) provide training to federal law enforcement personnel.

The nature and quality of the response to these protests has changed dramatically over time, and law enforcement have been criticized of both over-responding and under-responding to protests. After a decade of disastrous crowd control effects in the 1990s (including the LA riots in 1992 and the Seattle World Trade Organization protests in 1999), law enforcement agencies turned toward harsher techniques that still remain in place (though are controversial) today. These techniques include: 1) deployment of military tactics and equipment; 2) use of force and arrests as a primary means of crowd control; 3) emphasis on controlling space and access; 4) sophisticated surveillance of protestors and interagency cooperation; and 5) an unwillingness to communicate with or negotiate with protestors. These tactics are based on the premise that all protests and crowded events are volatile and are likely to become public safety threats. But there have more recently been many critiques of law enforcement over-responding to civil disturbances using excessive force and making low-quality arrests; this was the case in response to the April 2000 protest to a meeting of the International Monetary Fund and the World Bank, as well as a separate 2002 incident again protesting the World Bank.

However, the Capitol insurrection that occurred on January 6, 2021 represented an under-response from multiple federal agencies. An investigation by the U.S. Senate revealed that the Capitol Police lacked sufficient training and equipment for handling civil disturbances, and the city eventually agreed to pay $1.6 million to settle lawsuits associated with this incident. The federal government has also under-responded when providing assistance to local communities, such as the case of the 2017 “Unite the Right” rally in Charlottesville.

The federal government also seems to be operating based on outdated training, strategies, and tactics — often those lacking an evidence base. This is particularly salient in the way that the federal government guides state and local agencies on how to to respond to protests. When it comes to the federal government’s indirect role in shaping protests, perhaps one of the most important is training state and local police agencies on crowd management, crowd control, and civil disturbances, something that is offered by numerous federal agencies. As stated above, both FEMA and FLETC provide training to federal law enforcement personnel. Unfortunately though, the material is not always evidence-based.

Per the Niskanen Center report, FEMA’s Center for Domestic Preparedness provides training for state and local law enforcement agencies on mobile field force operations, which are rapid response teams that are trained to response to civil disturbances. In their Operations Student Guide, FEMA claims that crowds share a ‘homogenous mental state.’ However, research has found that this is not true, consistently showing that crowds tend to be heterogenous, consisting of people with a variety of identities and motives. But if police treat crowds as if they are homogenous, they might be inclined to see all protesters as radicals, when in reality only a subset of demonstrators will meet this threshold. Regardless, this same research suggests that such a response could lead police to inadvertently increase conflict and violence by leading crowds to unify in opposition against the police.

Another example of where the federal government falls short of providing evidence based training, according to the Niskanen Center report, is on behalf of the Federal Protective Service (FPS). The FPS training covers types of civil disturbances and demonstrations, however, it also seems inconsistent with current evidence-based recommendations. As an example, it instructs officers to avoid contact with demonstrators — the opposite of dialogue-based approaches that have been found to be effective in reducing conflict and violence during events.

Improving the Federal Government’s Role in Handling Protests

In the past, police have been criticized for both under-responding and over-responding to protests. How law enforcement perceive crowds and crowd dynamics is vital because these understandings shape their responses to crowd events. One key example of this is that federal training is riddled with references to “the crowd” as if it is one single entity with one perspective, despite the fact that research consistently shows that crowds are heterogenous, consisting of people with a variety of identities and motives. The former type of mentality is dangerous because it fuels the use of blanket crowd control tactics that could result in over-response to protests.

Similarly, theories about social contagion effects have been debunked in research, though they still play a large role in federal training materials. Law enforcement officers are often told to focus on preemptively arresting “agitators” to shut down social contagion effects, but this might actually escalate conflict and violence if arrests are seen as arbitrary or unjust. Research shows that protestors have a variety of perspectives on the use of more extreme protests tactics such as property  damage and interpersonal violence. In fact, the most important factor influencing protestors’ support for violence against police was their view on how police treated them during the movement. If an individual’s conduct clearly warrants an arrest due to participating in violent or destructive behavior, then that is a different story. The overall goal though, is for police to avoid triggering a widespread feeling of moral indignation about the police because under these circumstances, the crowd might unite around a shared opposition to the police.

With this in mind, the report makes a few recommendations. In sum, officers should: 1) be educated on the composition of protests and their social dynamics, values, and goals; 2) facilitate peaceful assembly to prevent violence when able; 3) use deliberate and clear communication to understand the goals of protestors, prevent conflict and quickly identify threats to public safety; and 4) learn to differentiate between members of crowds who actively endanger public safety rather than uniformly suppressing all protestors.

To better understand the composition of protests and their social dynamics, police should rely heavily on intelligence to learn ahead of time about protests and riots that may be planned in their jurisdiction. They can also seek to understand the goals of protestors, using deliberate and clear communication to do so. This might involve communicating with protest organizers before the event to learn about who is planning to show up, what they are planning to do, and what they hope to achieve. When intelligence suggests that an event may become destructive or violent, police should always have additional assets available “behind the curtain” in case officers on the front lines encounter violent resistance.

On the day of the event, police should continue to engage in dialogue with protesters and take steps to deescalate conflict and facilitate peaceful assembly whenever possible. If some people are engaging in destructive or violent behavior, police should seek to arrest those individuals and not take enforcement action against the whole crowd. To this point, officers can learn tactics like threat assessment, which teaches them how to identify behavioral threat indicators and to assess whether someone is carrying a concealed weapon. If it is necessary to disperse a whole crowd, police should issue clearly audible warnings before taking enforcement action, and by informing people what is going to happen if they do not disperse. Once dispersal orders are issued, people also need sufficient time to follow their orders.

In both its training and its operations, the federal government has fallen short of its responsibility to serve as a model in the use of evidence-based crowd management practices. The federal government should conduct a comprehensive review of the relevant training and policies of every federal agency that engages in crowd control, crowd management, and response to civil disturbances, and the review should assess whether training and policies are consistent with current research evidence. The federal government should conduct (and encourage local law enforcement agencies to conduct) honest after-action reviews after high-profile incidents that seek to identify which approaches worked well and which ones did not work well. They could also work with researchers to empirically evaluate their training, policies, and operations. With these recommendations, the federal government can play a lead role in adopting, testing, and refining evidence-based practices for crowd management and response to protests.

For more detailed information on how to respond effectively to protests, see Edward Maguire and Megan Oakley’s 2020 guidebook on policing protests.

Conclusion

While law enforcement response to protests varies widely based on locality, the federal government plays both a direct and indirect role in this response. When providing direct assistance, federal law enforcement agencies sometimes over-respond, abusing their authority, while other times they under-respond, failing to protect the people and places they serve. Their most important indirect role in policing protests involves training state and local police on crowd management, crowd control, and civil disturbances, but the training provided seems very weak, according to the materials that are publicly available, which are inconsistent with current research evidence and embrace outdated and inaccurate information. The federal government should serve as a model for the nation in how to respond to protests in an evidence-based manner, but they currently fall short meeting this standard. As a general recommendation, federal law enforcement should familiarize themselves with current research evidence and best practices and begin making whatever adjustments are necessary to improve their training, preparation, and responses to crowd events.

 

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