When police officers have sole authority to make the call on whether there’s “immediate danger,” they can — and often do — exaggerate the circumstances, giving them wide latitude to arrest nonviolent protesters. Worse yet, if even one person throws rocks or a water bottle, then anyone in the general area can be arrested for riot participation. These unjust arrests, as with all arrests, fall hardest on people of color.
As we’ve seen over the past several weeks, when carried out, these broad statutes often lead police to arrest peaceful protesters, violating their First and Fourth Amendment rights. Due to their broad nature that enables these constitutional violations, anti-riot laws should be ruled as flatly unconstitutional.
Congress passed a federal anti-riot law as part of the Civil Rights Act of 1968. Vaguely written anti-riot laws also passed in states nationwide were meant to dissuade peaceful protesters from exercising their First Amendment rights. To this day, these laws — intentionally broad and opaque and codified in states from California to Minnesota and Texas to D.C. — are exploited by the police to intimidate, silence and arrest those who are peacefully pushing for a better world.
Nonviolent protesters marching in memory of George Floyd and against police brutality have faced heightened aggression from the police, including unjustifiable arrests based on faulty premises. We need to rewrite the laws that enable police violence against peaceful protesters.
During the recent protests, Dallas police shot protesters with tear gas and rubber bullets, causing one to lose an eye. Police assaulted protesters with police vehicles and body-slammed them on pavement. Hiding behind the state’s anti-rioting law, Dallas police claim these actions were necessary to prevent “immediate danger,” but really, they used these measures against peaceful protesters who posed no threat to them, other people or property.
Such is the experience of dozens of peaceful protesters, including Yolanda Dobbins, Megan Nordyke and Lily Godinez, who were each violently arrested while peacefully holding up Black Lives Matter signs and marching for justice.
It’s not that police shouldn’t have any legal avenues to quell violence; rather, as one federal judge opined, it’s that a broad anti-riot statute “criminalizes advocacy even where violence or lawless action is not imminent.” In a sense, anti-riot laws are misnomers, because they’re often not actually used to contain riots — they’re used to arrest peaceful protesters who might, at some point, hypothetically, become violent.
In Texas, it has been more than 40 years since anyone has challenged anti-riot laws. Until now.
Hardened but not broken by their experiences, Dobbins, Nordyke and Godinez are suing, alleging that through the process of enforcing these vague statutes, Dallas authorities committed unconstitutional “acts of unlawful arrest, excessive force, inadequate training, false arrest, and negligent hiring, retention, and supervision, and intentional emotional injury.”
I am horrified by this codified assault on free speech and peaceful protest. As a former prosecutor, I say as a nation, we must do better. And as a civil rights lawyer, I am committed to pursuing this case until this anti-riot law is duly ruled unconstitutional.
The urgency of this lawsuit is defined by the gravity of this moment. The Dallas area has a longer list of high-profile police brutality cases than most major cities, and as with the rest of the nation, Texans are no longer standing for it. The killings of Jordan Edwards, Botham Jean, Atatiana Jefferson and countless others have shaken good-willed people all across the state. Reflected in the outpouring of support over George Floyd’s killing, the moment for meaningful reform — including of anti-rioting laws — has finally come. A California case is seeking to challenge federal anti-riot laws. In South Dakota, the American Civil Liberties Union has filed a challenge to the state’s anti-protest laws.
Through protesting, ordinary people are making an extraordinary difference in the Black Lives Matter movement. People have the right to speak up about what they believe, especially during moments of national mourning and distress. And any efforts to curtail that should be ruled unconstitutional, lest the police continue brutalizing peaceful protesters.