On Trump’s inauguration day, protests took place in DC. Violence occurred during the protests, including throwing stones, damaging vehicles and storefronts. A black bloc appeared to be used by some protesters. Black bloc is a tactic where individuals engage in confrontational force, donned in black clothing for anonymity; often associated with anarchism. David Gomez, a former senior FBI counter-terrorism official, said black bloc activists often take “advantage of the legitimate protesters to destroy things.”
The police arrested 230 individuals. They were charged with felony rioting. Felony rioting prohibits willfully inciting or urging others to engage in a riot where in the course and as a result of the riot a person suffers serious bodily harm or there is property damage in excess of $5,000. A riot is defined as an assemblage of 5 or more persons which by tumultuous conduct or the threat thereof creates grave danger of damage or injury to property or persons. The maximum punishment for felony rioting is 10 years incarceration and/or a fine.
The Probable Cause Standard in Mass Arrests
The validity of the mass arrest will turn on whether there was probable cause. Because the Fourth Amendment protects against unreasonable searches and seizures, an arrest is reasonable if supported by probable cause. Probable cause generally requires a reasonable belief to suspect that the arrestee committed a crime.
The dubious notion that police had particularized suspicion for each of the 230 arrested protesters suggests the mass arrest was illegal under a traditional probable cause standard. But, the traditional standard has a twist where a large riot is involved.
In Barham v. Ramsey, the DC Circuit reviewed a civil suit against DC officials for a mass arrest during 2002 protests against the World Bank and IMF. Three hundred and eighty-six persons were arrested. Police arrested everyone in a certain perimeter of a DC park after witnessing widespread infractions by demonstrators during these protests.
The Court found an Assistant Police Chief violated the plaintiffs’ clearly established Fourth Amendment rights by arresting an undifferentiated mass of people on the basis of crimes committed by a handful of never-identified individuals. Probable cause did not exist merely on the basis of proximity to others independently suspected of criminal activity, nor did it exist for everyone on the basis that some people had committed criminal conduct. The absence of evidence that the police had particularized probable cause to arrest each individual in that park resulted in a violation of the arrestees’ clearly established constitutional rights.
The police, however, suggested mass arrests are justified to maintain control over a large demonstration that turns violent. The Court seemed to agree, noting that:
“when compelling circumstances are present, the police may be justified in detaining an undifferentiated crowd of protesters, but only after providing a lawful order to disperse followed by a reasonable opportunity to comply with that order.”
But, as the police failed to give a dispersal order and time to comply, such justification did not apply.
This exception was expanded upon in a later case, which permits police to arrest individuals if there is a reasonable belief that that the arrestees were part of a cohesive unit that was observed violating the law. The case was Carr v. District of Columbia, where a civil suit was filed on behalf of the 65-75 people arrested for parading without a permit during a march against George W. Bush’s inauguration, during which violence and property damage occurred. In Carr,the DC Circuit affirmed the need for particularized probable cause, but found such a showing could be satisfied where officers have grounds to believe all arrested persons “were a part of [a cohesive unit] observed violating the law.” The Court found a crucial difference between the Barnham demonstrators and Carr demonstrators–the former did not operate as a cohesive unit, whereas the latter did. The Court believed a requirement officers verify each individual engaged in a specific riotous act would be practically impossible in a large riot, thus making the anti-rioting statute unenforceable in situations where it was most needed. The possibility of arresting an entirely innocent person, the Court noted, should be quelled by the fact the question was only probable cause, not an ultimate conviction. The Court also went on to disavow Barnham‘s suggestion that a dispersal order was necessary before conducting a mass arrest. Such an action, while practical, is not a constitutional requirement.
This decision did elicit a dissent from Judge Griffith, who criticized the Court’s departure from the individualized probable cause standard. Specifically calling out the unsupported proposition espoused by the majority
“that police may lawfully execute mass arrests based upon assessments of group behavior and not upon particularized determinations about individual conduct.”
The dissent also noted that the majority was ambiguous as to what “acting as a unit” means. A question which may be answered by the latest mass arrest of Trump protesters.
Did Probable Cause Exist for the Mass Arrest in the Trump Protests?
Assuming the DC Circuit’s probable cause standard in Carr is applied to the Trump protesters, the police may be able to justify the mass arrest without individualized suspicion that each arrestee committed a riotous act. These arrests should not be valid, however, without a particularized description of the cohesive unit that engaged in the criminal conduct and a reasonable belief that each arrestee was part of that unit. Such an analysis would give effect to the DC Circuit’s concerns in Carr while protecting unnecessarily chilling protected political expression.
Establishing probable cause through group membership (i.e., units) in political protests where violence erupts could chill protected political expression. If the delineation of the group is simply those publicly demonstrating, the risk of acquiescing in police arresting individuals for protected political expression is high. But, if the group’s contours are more narrowly drawn to capture those engaged in the tumultuous and violent conduct, the risk of punishing protected speech is decreased. Depending on how generally the group’s contours are drawn, the chilling effect may be lessened or heightened.
At first glance, this test may appear to nullify the exception for riotous in crowds discussed in Carr, but the Trump protests provide a good example of how this exception can be applied to a more specific group within the larger protesting unit. From news reporting accounts, it appears much of the violence during the protests was from a group engaged in black blocing. (See here and here and here). These protesters worked in groups of individuals clothed in black. Defining the cohesive unit as those demonstrators in groups wearing all black who had been observed engaging in violence narrows the pool of protesters subject to arrest. Could an innocent individual engaged in peaceful protest be arrested as part of this unit? Yes, but the risk is much smaller if the police are forced to specifically delineate contours for the “cohesive unit” beyond simply identifying a mass of demonstrators in a general area where some unidentified individual committed violence.
As noted in the background, violence is sometimes used as a tactic by individuals taking advantage of a legitimate, peaceful protest. Validating mass arrests based on a general crowd where a few individuals committed violence threatens to create a perverse incentive, whereby protected speech could be suppressed through the use of violent agitators shielded by the crowd. An additional benefit of narrowing the demonstrators subject to arrest to those sharing characteristics of the group engaged in the prohibited conduct is to safeguard against this possibility.