Tear Gas + Water Hoses + Dispersal Orders: The Fourth Amendment Endorses Brutality in Protest Policing

Abstract

Thirty years ago, in Graham v. Connor, the Supreme Court determined that excessive-force claims against police should proceed via the Fourth Amendment, which theoretically protects an individual against unreasonable siezures. However, the Court showed extreme deference to law enforcement’s use of force by using a permissive reasonableness analysis that bestows on police great leeway to make quick split-second decisions in tense and rapidly evolving circumstances. The result is a test that, from its inception, has been too forgiving of police violence and misconduct. This lax reasonableness standard, along with qualified immunity principles, has shielded police from § 1983 civil rights litigation in excessive-force cases. However, the obstacles to relief are worse when the victim is not an individual in a regular street encounter but rather an activist during a protest—particularly an activist of color. This Essay explores this phenomenon through the lens of the Dundon v. Kirchmeier litigation that stemmed from the 2016 police assault on indigenous protestors opposing the Dakota Access Pipeline. The encounter left 200 activists injured after law enforcement blasted them overnight with tear gas, special impact munitions, and fire hoses to remove them from the area. In refusing to enjoin the police’s use of these weapons against water protectors, the judge questioned whether the Fourth Amendment even protected activists since police sought to disperse them, instead of arrest them. The judge then reasoned that even if the Fourth Amendment applied, the police use of force was reasonable considering the volatility of the crowd despite information that the plaintiffs themselves were peaceful—thus attributing the conduct of the entire group to the plaintiffs and erroneously amplifying the threat to law enforcement. Both lines of reasoning threaten the safety of protestors. The first removes from Fourth Amendment protection the emblematic protest scenario where police use force to disperse protestors. The second turns the Constitution on its head, foregoing traditional Fourth Amendment analysis, which inquires whether the government intrusion is reasonable in light of the individual’s actions, not the actions of the whole group in proximity to the individual. This is most dangerous to activists of color who are most likely to be perceived as threatening by police and to be the subject of their ire.