Helmeted officers who use wedge formations to split demonstrators’ ranks, then trap them without escape routes and arrest them one by one, now find some protesters locked to signposts or linked together in “sleeping dragons” made by putting arms inside three-foot pipes rigged with inaccessible catches—the sort the Washington police saw being bought at Home Depot. Policemen singling out specific demonstrators for arrest have been evaded with “Black Bloc” tactics: protesters dress in three layers of clothing—an outer layer of dark garments to make activists indistinguishable from one another, a second layer exposed during illegal activity, and a third layer of ordinary street clothes to blend in during escape.
When police use tear gas, some protesters don gas masks—violating an archaic 1845 New York statute prohibiting three or more masked people from loitering. When police videotape demonstrators breaking the law, the protesters mask themselves with bandannas and T-shirts they’ve brought along for the purpose.
Given the history of police officers breaking up protests violently, a small number of activists have countered with homemade weapons. As listed in NYPD intelligence reports, they include frozen water balloons dropped from buildings onto police cars; flammable or noxious chemicals in toy water guns or inside eggshells; marbles or ball bearings scattered before police horses; lacrosse sticks and slingshots to hurl rocks, bottles, and other missiles; and a “Tiki Torch” of burning liquid in a can at the end of a long stick that can be raised high and swung forward to spatter the police thirty to fifty feet away.
How often and where such assaults have actually occurred is not made clear to officers reading the intelligence, however. So there is no way to acquire perspective from the NYPD reports. They are written in hyperbolic language, the dastardly possibilities are woven into the benign, the violent is mixed in with the nonviolent, and the unlawful with the lawful until a dizzying spectacle of “anarchists” and “extremists” anticipates mayhem on the streets.
“Instructions Given to Anarchists,” says one heading. “Anarchist Checklist for Action,” says another. Some protesters are self-declared anarchists, but the police spread the term more broadly than warranted, casting demonstrators as nihilists who have no political position or consequential viewpoint. They come across as dangerous, dark, and mysterious, like black holes of chaos.
One group branded that way, Critical Resistance, states idealistically on its Web site that it “seeks to build an international movement to end the Prison Industrial Complex by challenging the belief that caging and controlling people makes us safe. We believe that basic necessities such as food, shelter, and freedom are what really make our communities secure.” The group advocates “community-based alternatives for safety and conflict resolution.” Police intelligence labels this “anarchist.” End of discussion. Cops aren’t enthusiastic about eliminating prisons.40
The reports contain shared intelligence from police authorities across the country. Much is blacked out in the copies made public, but with enough left uncensored to indicate extensive infiltration: One hint of internal spying is seen in documents with numerous references to activists “considering” this or that tactic. West Coast organizers were reported to be planning a reconnaissance trip to New York. An undercover officer or an informant joined a walking tour by the group Surveillance Camera Players, which maps closed-circuit cameras around the city.
As the NYPD files filled up with confusing threat assessments from across the country, more obscurity than clarity developed. From Philadelphia, for instance, a report during the 2000 Republican convention noted that protesters had deployed lawyers wearing badges labeled “legal observers” to watch police conduct. The intelligence document called it “an effort to intimidate uniformed personnel.” Yes, if uniformed personnel would be intimidated by lawyers watching for brutality and other illegal behavior.
Looking through the lens of combat makes every innocent defense look like part of the offense. So when a group advertised tips on treating for tear gas, pepper spray, and physical injuries before the 2004 convention in New York, police intelligence reacted with suspicion, warning: “The above indicates that participants of direct action protest(s) may be willing to physically resist and confront disorder control personnel.” Yes, or it may indicate that the participants anticipate being gassed, sprayed, and injured by “disorder control personnel.”
The intelligence professional’s passion to collect everything possible is nicely illustrated in an NYPD report under the rubric “Secret,” and beneath a blacked-out box that may have contained notes from an infiltrator. The censored document declares ominously in large type: “LOCAL ACTIVIST GROUP TO USE ART MURALS IN ORDER TO SPREAD PEACE MESSAGE; GROUP MAY USE DIRECT ACTION METHODS IN CONJUNCTION WITH STREET THEATRE.” It describes the organization as “a collective of artists dedicated to using artwork to spread the word of peace.” It uses “murals, banners, posters, and street theatre during its actions.”
It’s logical that police want to know about demonstrators’ plans, but it’s hard to see how this overdose of mislabeled information can possibly be useful to patrolmen or commanders making quick decisions on handling crowds. In the jumble of impressions from the intelligence reports, the occasional acknowledgment that a certain group plans “passive acts of civil disobedience” is overwhelmed by the dangers attributed to other organizations. But who can tell the various protest groups apart when they’re entangled in the streets? How can cops differentiate between those devoted to lawful protest and those planning to violate the law? And how does the surveillance prepare officers to react to lawbreakers with a sense of proportion?
Dire intelligence leads police to expect the worst and act accordingly, often losing perspective on the severity of the infraction. “The way the police are deployed during demonstrations, the model is not policing, the model is military,” said Mary Cheh of the D.C. City Council. “If you keep that in mind, then you understand. They don’t want to resolve the problem or handle it, they want to remove the adversary. They want to remove them. Any minor act is a precursor to chaos, so arrest everybody.” There is a difference between blocking a sidewalk and throwing a stone, but officers tend to pull out the handcuffs for both.
The NYPD ordered 26,000 pairs of flexible cuffs (at ninety-five cents apiece) before the Republican convention, rented a pier for containing prisoners, and issued a memo stating that no mere summonses would be written; every infraction would result in arrest. The ACLU surmised that the purpose was to build a fingerprint database of demonstrators.41
Armed with an intricate legal memorandum prepared beforehand, New York police officers had a handy guide listing which law could be used to charge which offense, from criminal acts down to the most insignificant violations of the administrative code. Of 1,827 people swept up and locked away for a day or so, 1,342 were charged with minor administrative infractions (such as riding a bike on a sidewalk) or “disorderly conduct,” a catchall usually applied to someone who ignores an officer’s instruction to move.
“Distinguishing between protected First Amendment activity and criminal conduct is often difficult,” the police memorandum declares, adding that while many demonstrators are “cooperative with the police and cause few problems,” others “are less agreeable and engaged in conduct that pushes to the limit the delicate balance between the right to demonstrate and public safety.”
As a cautionary note to cops who might want to slap on the cuffs when a protester hurls nothing more than an epithet, the guidelines warn, “It is virtually impossible to sustain in court a charge of harassment based on verbal insults directed at a police officer.” But if “the words were part of a scheme to harass or annoy,” or if they were accompanied by “physical contact, however slight,” then harassment under the state’s Penal Law, section 240.24, could be charged.
The guidelines tell officers to allow signs but not poles that could be used as weapons, and advise charging “criminal possession of a weapon” (article 265 of the Pen
al Law) for hiding sleeping dragons and other implements inside large puppets. “If an officer is physically injured” while trying to dismantle a sleeping dragon, the guide states, “consider charging their possessor(s) with Assault in the Second Degree, Penal Law § 120.05 (D) Felony.”
Taking down police barricades can be charged as inciting to riot (Penal Law section 240.05), but the memo warns that incitement requires that ten or more persons be urged toward “tumultuous and violent conduct” that is likely to bring public harm. Those engaging in passive resistance can be arrested for obstructing governmental administration (Penal Law section 195.05), according to a PowerPoint presentation shown to officers before the convention.
The guidelines state that if demonstrators on sidewalks or in streets don’t obey orders to move, police can arrest them for blocking vehicular or pedestrian traffic, provided the protesters are doing so “with intent to cause public inconvenience or alarm,” and not inadvertently. The charge is disorderly conduct under Penal Law section 240.20(4), under which 548 demonstrators were seized during the convention. And so on, wrapping protesters in a blanket of ordinances.
If enforced literally, New York City’s laws and regulations can be stifling. I learned as a reporter in the 1970s, investigating corruption in the construction industry, that it was practically impossible to build a building legally in the city. If the cops wished, they could stand and write a ticket every time a truck spilled a little dirt while it crossed a sidewalk at a construction site—hence the weekly payoffs to the precinct.
So it is with demonstrations, as a lanky twenty-five-year-old technical whiz named Joshua Kinberg learned to his distress. He had prepared for the convention by rigging his bike with a dot matrix printer to spray water-based chalk on the pavement, like skywriting. As messages were sent to his Apple PowerBook computer or to his cell phone, he would transmit those he chose via Bluetooth from his computer to the writing device—a novel and quite innocent form of expression.
Kinberg thought that chalk, easily washed off, wouldn’t count as graffiti, but he was wrong. As an MSNBC interview with him was ending (conducted by Ron Reagan, of all people), police arrested the biker and confiscated his bike, which he’d equipped as his master’s project at Parsons School of Design. The NYPD’s legal guide pointed out that defacement of property under the city’s Administrative Code, section 10-117, is “a class B misdemeanor and does NOT require any actual damage (i.e. chalk markings).”
The law also prohibits riding on the sidewalk (called “Reckless Operation on Sidewalks”) unless you’re under fourteen and your bike has a wheel diameter under twenty-six inches. Traffic rules for bikes are so detailed in requiring certain lights and reflectors that most cyclists are probably vulnerable to citation, which allowed cops to arrest biking demonstrators preemptively to forestall massive congestion—or the worse possibilities the police imagined. “Intelligence detectives questioned me about ‘violent protesters,’ ” Kinberg told The Village Voice, “but seemed disappointed to learn that I am an artist and only know other artists, and had no knowledge of any violence being planned.”42
Anyone who reads the preambles to the NYPD’s Legal Guidelines and the Police Student’s Guide: Maintaining Public Order is transported happily into a universe of constitutional perfection where “force can never be used by police officers to punish,” but “only when necessary to prevent crime, to arrest, or for their protection or for the protection of others”; where “the role of the Police Department includes protecting the right of protesters to peaceably express their view and protecting the right of non-protesters to go about their daily life unaffected by public disorder”; and where “the rights of assembly and the freedom to peaceably protest [must] be zealously protected.”43
Both manuals quote the First Amendment, and both stress the police officer’s obligation of impartiality. “Regardless of your personal feelings towards the demonstrators or the object [of] their protest,” says the student guide, “you must remain neutral.” It adds: “All attempts to regulate activities that are classified as pure speech have failed constitutional muster.… When the activity is more than pure speech and there is a real likelihood that it will affect the public in general, the police can apply reasonable regulations to the conduct of the demonstration.” The future cops are advised: “The most desirable method of handling demonstrations is with reasonableness rather than confrontation.”
“That’s Muzak,” scoffed Mary Cheh, who investigated the D.C. police. It’s the kind of soothing background of platitudes that routinely accompanies harsh mobilization. “When you put people on the line, and you put them in full riot gear, shoulder to shoulder, you’re not only sending a message to demonstrators,” she said. “The message is being repeated to every officer on the line.”
ZONING OUT FREE SPEECH
It must be satisfying to demonstrate against a president, especially if you think he might catch a glimpse of your sign as he whizzes by. But very few Americans, perhaps none at all, had the pleasure when George W. Bush was in office.
Since a president can easily slide into a comfort zone of sycophants, it can’t hurt him to see a few demonstrators with rude T-shirts injecting a small dose of irreverence into a triumphant appearance. In the age of stage-managed events for television, however, White House aides don’t like it. So under Bush, the Secret Service was turned into a kind of speech police. Wherever he ventured within his own country, he and the cameras covering him were shielded from uncomfortable messages. Demonstrators were penned into “protest areas” around the corner or blocks away, which came to be known sardonically as “free speech zones.” Citizens wearing T-shirts with unwelcome slogans were screened or expelled from audiences. Nobody needed a manual to figure out what was going on.
But a manual existed nonetheless, a very long and detailed set of instructions to White House advance teams on how to engineer the president’s appearances so that images of enthusiasm would not be tarnished by anyone exercising the First Amendment “right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Behind a cover bearing the august Seal of the President of the United States, and emblazoned with the warning “SENSITIVE—DO NOT COPY,” the how-to booklet featured a section ungrammatically titled “Preventing Demonstrators.” Restricting events to ticket holders was “the best method for preventing demonstrators,” said the guide. “It is important to have your volunteers at a checkpoint before the Magnetometers in order to stop a demonstrator from getting into the event. Look for signs that they may be carrying, and if need be, have volunteers check for folded cloth signs that demonstrators may be bringing to the event.”
The manual acknowledged that the Secret Service was responsible only for the president’s physical safety, not his immunity from hecklers. But it then corrupted the security agents’ role by urging planners to “work with the Secret Service and have them ask the local police department to designate a protest area where demonstrators can be placed, preferably not in view of the event site or motorcade route.”
In addition, “rally squads” of “college/young republican organizations, local athletic teams, and fraternities/sororities” should be on the lookout for demonstrators. Armed with “favorable messages using large hand held signs, placards, or perhaps a long sheet banner,” the teams should take up positions “in strategic areas around the site.” In groups of fifteen to twenty-five, they should roam the perimeter. If protesters get inside, “the rally squad’s task is to use their signs and banners as shields between the demonstrators and the main press platform. If the demonstrators are yelling, rally squads can begin and lead supportive chants to drown out the protestors (USA!, USA!, USA!). As a last resort, security should remove the demonstrators from the event site.”44
That’s just what happened to Jeffery and Nicole Rank when they tried to attend a Bush speech in West Virginia. It was the Fourth of July in 2004, a festive day on the grounds of the state
capitol in Charleston. They had received tickets, entered the area, and too long before the president arrived took off their outer shirts to reveal white T-shirts with the international sign for “NO!”—a red circle with a diagonal line across the name Bush. There were other touches: a picture of Bush superimposed with the international “no” sign on the left sleeve; a John Kerry button on the right; the witty line “Regime Change Starts at Home” on the back of Jeffery’s shirt; and “Love America, Hate Bush” on the back of Nicole’s.
The young couple said later that they weren’t shouting, making gestures, or disrupting the event, and had no plans to do so. But their timing was exquisitely premature, giving White House staffers opportunity to approach them as they stood quietly in the crowd, before Bush had a chance to see their artwork. They were told that they would have to leave if they didn’t remove or cover their T-shirts. When they refused, White House officials called in local police, who handcuffed them, led them away, locked them up for an hour or two, and charged them with trespassing.
By contrast, the many audience members who wore T-shirts and buttons supporting Bush “were not arrested, asked to leave, asked to cover their political messages, or otherwise harassed by law enforcement or White House Event Staff because of their expression,” the Ranks complained in a lawsuit.45 Nicole was suspended from her job at the Federal Emergency Management Agency pending resolution of the trespassing charge, which was later dropped. In the end, the mayor and city council of Charleston issued public apologies to the couple, and the White House settled their suit before it got to trial, for $80,000 of the taxpayers’ money.46 But their message of protest was obliterated; neither the president nor the television viewers saw it.
Rights at Risk: The Limits of Liberty in Modern America (Vintage) Page 34