After Ferguson, how should police respond to protests?

The response by law enforcement to protesters in Ferguson, Mo., is being criticized for its level of force and use of military-style equipment. We've labeled the weapons and gear being used by police in these photos from Ferguson. (Tom LeGro and Thomas Gibbons-Neff/The Washington Post)

The events these last few days in Ferguson, Missouri ought to be of grave concern to anyone who believes in the First Amendment, and specifically the rights to free speech, protest, and assembly. As you may have read, last night was particularly ugly, as police arrested a St. Louis alderman, Huffington Post reporter Ryan J. Reilly, and our own Washington Post reporter Wesley Lowery. Police also tear-gassed a news crew from Al-Jazeera. There are also reports, video, and images of police teargassing, arresting, and otherwise intimidating peaceful protests all over the town.

While it’s true that there have been incidents of rioting, looting, and violence directed at police, the initial protests against Michael Brown’s killing were peaceful.* The only hint of violence at the first protest was described by an Associated Press reporter, who reported chants of “kill the police.” That report has since been disputed by people at the protest, who have suggested that the AP journalist or police misheard other chants. From what I can find, that report was also never confirmed by any other journalist. The problem lies in how local police responded to that initial protest. They brought out the full riot arsenal.

Here we have a community that doesn’t see itself reflected in the police force. Ferguson is 67 percent black, while its police force is more than 90 percent white. It’s a community with long-simmering racial tension between police and the people they serve. It has now been well-reported that blacks are significantly over-represented when it comes to stop-and-frisks, traffic stops, and arrests in Ferguson, even though the town’s white residents are more likely to be caught with contraband like drugs or illegal weapons. It isn’t difficult to see why black residents of Ferguson may have already felt as if the police are an outside force that has been imposed upon them, rather than a group of public servants selected from the community to protect them from harm.

We then have an incident that represents all of these problems in a very concentrated form — an unarmed black man was killed by a (reportedly) white police officer who had stopped him as he was walking home. The police have since refused to release the officer’s name. They’ve said they have no intention of releasing the autopsy performed on Michael Brown. Police Chief Thomas Jackson refused to even say how many shots were fired at Brown. (He claimed he didn’t know, though that would be pretty easy to figure out.) Though the police department has body cameras, it hasn’t required its officers to actually wear them. All of this only adds to perception of a Ferguson Police Department that is detached, unaccountable, opaque, and unconcerned with how it is perceived by the community it serves. (Gassing, arresting, and threatening journalists doesn’t help with the perception that they feel they’re above transparency.) The police then showed up at a peaceful protest with military vehicles and weapons. If a town’s citizens are reminded over and over again that the law has no respect for them, we shouldn’t be surprised if they begin to lose respect for the law. This isn’t an excuse for the looting and rioting. But it does contextualize what we’ve seen.

This raises a question I’ve seen on Twitter and Facebook from a number of people — how should police respond to protest? And how should they respond when protests turn violent?

One of the pioneers of community policing — a form of policing that stresses interaction over reaction, deescalation over brute force, and that police should have a stake in the communities they serve —is Jerry Wilson, who was appointed police chief for Washington, D.C. in 1969. Wilson was of course appointed during a very turbulent time in America, and he took office just after the riots following the assassination of Martin Luther King, Jr. had ripped the city apart. But Wilson went to great pains to recruit police officers from the city’s residents, and to try to make the police force more reflective of the city. He also took a much different approach to protest. I interviewed Wilson for my recent book on police militarization. Here’s a passage from the section about Wilson’s approach to protest:

Wilson believed that an intimidating police presence didn’t prevent confrontation, it invited it. That didn’t mean he didn’t prepare, but he put his riot control teams in buses, then parked the buses close by, but out of sight of protesters. Appearances were important. In general, instead of the usual brute force and reactionary policing that tended to pit cops against citizens—both criminal and otherwise—Wilson believed that cops were more effective when they were welcomed and respected in the neighborhoods they patrolled. “The use of violence,” he told Time in 1970, “is not the job of police officers.”

It’s worth noting that during Wilson’s tenure, not only did Washington, D.C. not see the level of rioting and protest violence we saw in other parts of the country, crime actually fell in the city, even as it soared across the rest of the country.

The 1999 WTO protests in Seattle represent another landmark moment in how police handle protest in America. Those protests also began peacefully, but eventually evolved into rioting, mostly after police responded to peaceful protesters with teargas. Reports after the protests conducted by the city of Seattle and state of Washington found that police overreaction, paranoia, and misinformation played a major role in escalating the situation. Seattle’s chief of police at the time, Norm Stamper, now says his response to those protests was the biggest mistake of his career. I also interviewed Stamper at length for my book. Here’s an excerpt:

The “Battle for Seattle” is commonly looked back upon as the start of the modern anti-globalization movement. But it as also a landmark event in the way police and city officials react to protests. Though, again, there were few injuries and no fatalities, the images that emerged from Seattle depicted a city that had lost control. Going forward “control” would be the operative word in how police handled protests. In the years to come, the “Darth Vader” look would become the standard police presence at large protests. Cities and police officials would commit mass violations of civil and constitutional rights, and deal with the consequences later. There would violent, preemptive SWAT raids, mass arrests, and sweeping use of policed powers that would ensnare violent protesters, peaceful protesters, and people who had nothing to do with protest at all.

Stamper calls his decisions in Seattle “the worst mistake” of his career because he’s seen how the police response to protest has changed since 1999. “We gassed fellow Americans engaging in civil disobedience,” Stamper says. “We set a number of precedents, most of them bad. And police departments across the country learned all the wrong lessons from us. That’s disheartening. So disheartening. I mean, you look at what happened to those Occupy protesters at U.C. Davis, where the cop just sprays them down like he’s watering a bed of flowers, and I think that we played a part in making that sort of thing so common—so easy to do now. It’s beyond cringe-worthy. I wish to hell my career had ended on a happier note.”

The Occupy protests were also a fascinating case study in protest and how governments should respond to them. Because the protests went on all over the country, and because the police responses were so varied from city to city, we can look at the different approaches, the results those approaches produced, and perhaps gain some insight into how to best protect safety and property without infringing on the civil rights and liberties of protesters.

Maj. Max Geron is in charge of the Media Relations Unit, Community Affairs and Planning Unit of the Dallas Police Department. He’s also a security studies scholar who recently wrote his master’s thesis on policing and protests at the Naval Postgraduate School. Specifically, his thesis studied police reactions to the Occupy protests in Oakland, New York, Portland, and Dallas.  “The ideal police response to a protest is no response at all,” Geron says. (Geron emphasized that he was speaking as a scholar, and his views don’t necessarily represent those of the Dallas Police Department.) “You want to let people exercise their constitutional rights without interference.”

Barring that, Geron says, it’s important for police to communicate with protesters to establish expectations. “The technical term is negotiated management. What that means is that you want to come to an agreement about what’s expected, what’s allowed, and most important, you want to reach an agreement about what won’t be allowed.”

But Geron cautions against setting arbitrary expectations, such as mandatory dispersal times. “Most protesters will meet, protest, and go home when they feel they’ve made their point. If they aren’t breaking any laws, they can be left to express themselves.” Establishing a dispersal time then gives protesters something to rebel against. “When you establish arbitrary rules that have no basis in law, the police then feel they have to enforce those rules or they look illegitimate. They can set these rules with the best of intentions, but they just end up creating more problems for themselves.”

Geron also stresses fluidity and the ability to adjust on the fly. Police organizations are fond of protocol and standard operating procedures. But protests can be unpredictable. “The standard or by the book response may not be the best response,” he says. He points specifically to the Ferguson Police Department not releasing the name of the police officer who shot Michael Brown. “That may be the policy there. But you have to look at the situation. You have a community that is upset, that feels wronged. It’s important to establish trust with them. A big part of that is helping them to believe that you’re being straight and transparent with them. You have to be sure to protect the officer’s safety, but to win trust you have to be aware of the people’s fears, and you need to show you’re willing to make concessions to accommodate those fears.”

One active police chief who has adopted a less reactionary approach was Chris Burbank in Salt Lake City. I profiled Burbank last fall for the Huffington Post. Here’s what happened when the Salt Lake city council told Burbank he’d have to remove the Occupy protesters from the park where they had been encamped.

Salt Lake City Police Chief Chris Burbank, 46, was in charge of the eviction. But Burbank took a decidedly different approach from his counterparts in other cities who used aggressive, confrontational measures to oust their own Occupy encampments.

Burbank showed up at the camp and talked to the protesters, in some cases one on one. He explained that they’d need to start leaving the park at night, although they could come back during the day. He said that when the time came for them leave, they could do so peacefully, or they could choose to be arrested. He even asked them how they’d like their arrests to take place, in case they wanted the TV and newspaper cameras to photograph them giving themselves up for their cause . . .

When it came time to evict the Occupy protesters in Pioneer Park, then, Burbank and his officers wore their standard, everyday uniforms, not riot gear, as police units in other cities had. Burbank also made sure he was first on the scene — that the first person the protesters saw was the one with whom they had already had a conversation.

Most of the 200 protesters left voluntarily. Some took advantage of Burbank’s offer to have his officers help with their belongings. Nineteen chose to be arrested. There was no violence, no rioting and little anger. And so as images of violent clashes between Occupiers and police in other cities made headlines across the country, in Utah, some Occupiers even praised Burbank for the way he had handled their eviction. It’s one reason why the Salt Lake Tribune named Burbank its 2011 “Utahn of the Year.”

“I just don’t like the riot gear,” Burbank says. “Some say not using it exposes my officers to a little bit more risk. That could be, but risk is part of the job. I’m just convinced that when we don riot gear, it says ‘throw rocks and bottles at us.’ It invites confrontation. Two-way communication and cooperation are what’s important. If one side overreacts, then it all falls apart.”

Burbank also dismisses the idea that his approach could only work in a smaller city like Salt Lake. “I think it should be applied everywhere. That’s exactly how we as a nation should approach these events. We should approach it asking, ‘How can we best facilitate these people’s free speech?’ Putting them nine miles away from whatever they’re protesting doesn’t allow them to get their message across.

“Doing it this way takes extra time, and sometimes you take a little criticism from your officers,” he says. “But if my officers feel unsafe, that’s when it’s my responsibility as chief to show up personally.”

Burbank’s approach is far from common, but there are at least some other police officials who share his philosophy. One of them is former Madison, Wisconsin Police Chief David Couper.

Since the days of the the labor and civil rights movements and through the era of the protests against the war in Vietnam, we seem to have learned very little about the best way for government officials to respond to those who disagree with them.

This is a sad situation in a country such as ours which professes the values of freedom and justice that it does . . .

In a democracy, police have a very complex role compared to what is expected of the police in other systems. The power of the state must be balanced with the rights of an individual; other systems have no balance requirement—only to use the power given them by the state. Uniquely, police in a democracy don’t exist solely to maintain order on behalf of the state, but also to assure that the fundamental rights guaranteed to every citizen are protected in the process. “This is never more evident as when a totalitarian state responds to public protest. In this instance, the goal of the police is to prevent or repress, not facilitate, protest. We see that in today in Syria, China, and other less-than-democratic governments. In these instances, the very act of disagreeing with the government is illegal and subject to police action . . .

Early in my police career, I began to re-think the role of police and protest after I had witnessed and participated in too many that had gone wrong.

I was beginning to see that proximity mattered, being close was safe—just like on the beat. Get close, talk, stay in contact. The further the police positioned themselves from people in the crowd, the greater the chance the crowd would depersonalize them; to see them as objects and not people. Therefore, getting closer to the people, whether in managing crowds or patrolling neighborhoods on foot, seemed to be a good basic strategy that needed to be experimented with.

So, that’s what I did when I came to Madison. For over 20 years, we in Madison responded to anti-war rallies, civil rights demonstrations, student block parties, and other mass gatherings without substantial incident. How did that happen? We developed what today is being called the “soft approach” (see the recent work of Dr. Clifford Stott at the University of Liverpool). What Stott and others found is that dialogue and liaison are effective police strategies in crowd situations because they allowed for an on-going risk assessment that improved command-level decision-making. Using this strategy, there was a better outcome because it also encouraged ‘self-regulation’ in the crowd and thus forestalled the use of unnecessary force by police during moments of tension.

Geron also emphasizes personalization, pointing out that when police show up in full riot garb, especially gear that covers their faces, they dehumanize themselves to protesters. This is especially dangerous when the protests are against the police themselves, as was the case in Ferguson. “You make all of your officers look  like one another. To the protesters, to the people, your officers are no longer individual human beings with faces. You’ve just made each of them a faceless symbol of the police institution that the protesters are reacting against.”

The police in Ferguson are almost a textbook example of how not to react to protest. “When you start by rolling out the the SWAT team, and you then position a sniper on top of an APC with his gun pointed at the protesters, what kind of message are you sending? Did they really expect the sniper would need to start shooting people? It was just a show of force,” Geron says. He adds that it’s particularly important for police leaders to prepare their officers when the protests are aimed at police, and to stress the importance of separating themselves from criticism directed at the agency, or at policing in general. “It’s a crucial conversation that you need to have with your commanders and your officers. And you have to expect that they won’t get it at first. You have to tell them that it isn’t personal ‘They’re going to be critical of us. They may yell at us. But that’s okay. That’s their right. And our job is to protect their rights.’”

The buzz phrase in policing today is officer safety. You’ll also hear lots of references to preserving order, and fighting wars, be it on crime, drugs, or terrorism. Those are all concepts that emphasize confrontation. It’s a view that pits the officers as the enforcer, and the public as the entity upon which laws and policies and procedures are to be enforced.

Note the contrast between that and the approaches recommended by Geron, Burbank, Couper, Stamper, and Wilson. They all pit police officers not as enforcers, but as servants. Their primary function isn’t to impose order, but to preserve and protect the rights of citizens. In a strictly academic sense, preserving order and protecting rights are the same thing. Operationally, they’re radically different approaches to policing.

One final, important point: Policing is often cast as a balance between safety and freedom. The problem with that formulation is that it implies that to get a little more of one, we have to give up a some of the other. You need only look at Ferguson to see why that isn’t true. I doubt the residents of that town feel particularly safe or particularly free right now. The corollary to this is that there’s also a zero-sum relationship between officer safety and less aggressive, less militaristic more community-oriented policing. You have to give up some of one in order to get more of the other. Again, Ferguson is a pretty compelling argument to the contrary. The town is essentially a martially law zone right now. And I’d be surprised if you could find many officers on duty these last few nights who would tell you they feel safer today than they did a few weeks ago.

(*Clarification: There was an arson and some looting on Sunday night, but it isn’t at all clear that those activities were outgrowths of the vigil.)

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."
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Radley Balko · August 13