Dissidents cautiously applaud historic settlement agreement

Activists who take their message to the streets should be pleased with an historic settlement agreement reached last week between the Partnership for Civil Justice Fund (PCJF) and the federal government with national implications. After nearly 13 years of litigation, the Department of Justice (DOJ) and the Department of the Interior agreed to “significantly change the handling of mass protests in the United States,” according to PCJF.

The settlement agreement stems from mass arrests made in Washington, D.C. on November 27, 2002, against anti-World Bank/International Monetary Fund protesters and others. The civil lawsuit filed by PCJF accused the D.C. Metropolitan Police Department in conjunction with federal agencies of “once again” deploying its Civil Disturbance Unit “to disrupt political protest in the Nation’s Capital; and to punish with unlawful detention and false arrest those who engage in lawful civil dissent.”

The lawsuit also alleges that the Federal Bureau of Investigation (FBI) and other local and federal law enforcement agencies “collected intelligence” on lawful political activists and their activities, a practice that has been used with impunity across the country for years.

Now, with the approval of U.S. District Court Judge Emmet G. Sullivan, a plan has been laid out to stop some of these violations from happening again.

According to PCJF:

“The settlement lays out policies and rules that, among other requirements, effectively prohibit the ‘trap and detain’ kettling tactic and use of police lines to encircle demonstrations; prohibits mass sweeping arrests of protestors by emphasizing the requirement of individualized probable cause before arrests at free speech activities; and in circumstances where there is a lawful basis for a dispersal order, requires fair notice and warning to demonstrators as well as opportunity to comply with police orders to disperse, to be given three times at least two minutes apart and with avenues of exit announced through effective sound amplification.”

Judge Sullivan called it an “extremely significant settlement” and, because of the DOJ’s “active role” in “reviewing practices and procedures of local law enforcement” across the country, he said the reforms should “serve as a model for other law enforcement agencies,” and urged them to “take a hard look at this settlement” as a means to comply with Constitutional standards.

I certainly hope this civil lawsuit, resulting settlement agreement, and the $10 million price tag associated with it, can be used as a stick by the DOJ and police accountability attorneys across the country to prevent further use of unconstitutional tactics.

However, only time will tell and, unfortunately, history is not on the side of dissidents.

As I lay out in Success and Failure of Civil Litigation, a chapter of Crashing the Party: Legacies and Lessons from the RNC 2000, there’s no certainty that police will abide by their own crowd control policies, let alone pay attention to models for upholding constitutional practices.

In the past fifteen years, local and federal governments have paid out more than $50 million for the actions of law enforcement agencies and have agreed to numerous policy reforms. Yet, our police are increasingly militarized, intrusive, disruptive, and continue to use violent tactics against political dissidents. One need only look to the Occupy Wall Street and Black Lives Matter movements to see the repressive way in which law enforcement engages with today’s political demonstrators.

A stark example of the ongoing contempt of protesters can be seen in Oakland, California. Class action litigation was brought by the NLG, ACLU of Northern California, and several civil rights attorneys in response to police violence against antiwar protesters at the Oakland docks in 2003. As a result of a settlement agreement, Oakland became the first city in the country to forbid “the indiscriminate use of wooden bullets, rubber bullets, tasers, bean bags, pepper spray and police motorcycles to control or disperse crowds or demonstrations,” according to the ACLU of Northern California.

Despite paying out more than $2 million and a new policy that “strictly limits the use of force, and mandates that a primary goal of the Oakland Police Department in their planning for and management of demonstrations must be the protection of the right to assemble and demonstrate,” Oakland police have repeatedly violated their own crowd control policy, sometimes brutally arresting demonstrators.

This is not to say we shouldn’t use the courts to seek redress against violent and abusive practices by police, but we shouldn’t expect the police to abide by them or respect our constitutional rights. We must be innovative and ever-more-creative in our approach to resisting such practices, and use not only the courts, but also the media and other political forums to fight back. We must be diligent in taking control of the streets and the dominant narrative, which is too often pitted against activists for social change!

You can read more on the lawsuit and settlement agreement here.