Written by E.A. Gjelten

Which Law Enforcement Tactics Violate Protesters' Civil Rights?

The right to protest peacefully is not only enshrined in the First Amendment—it’s central to the founding of the United States and its democratic experiment, from the Boston Tea Party to the Civil Rights Movement to the Black Lives Matter protests. Yet most of today’s demonstrators understand that police don’t always respect their rights, particularly when protests are large and directed at systemic racism in law enforcement.

If you’re planning to attend a protest—or you believe your rights were already violated during a demonstration or an act of civil disobedience—it’s helpful to know what police may or may not do when they’re dealing with protesters. Then you can decide what actions you might take to protect your rights, including a lawsuit based on a violation of your civil rights.

The Balance Between Constitutional Rights and Police Powers

Law enforcement may not violate protesters’ constitutional rights, including the right to freedom of speech, to assemble peacefully and petition the government for change, and to be free from unlawful arrest or excessive force.

Nonetheless, police officers have broad latitude when deciding whether to arrest protesters for violating the law. That’s true even for minor offenses, and even when the laws themselves (including executive orders issued as part of emergency declarations) might be unconstitutional, such as overbroad curfews and “no-protest zones” or “free-speech zones” that keep demonstrators out of the way where their message can’t be heard.

When Is Police Force Excessive?

Courts use two different standards for deciding whether police have used excessive force, depending on whether or not their actions involved an arrest, detention, or some form of physical contact.

  • When the use of force is unreasonable. The Fourth Amendment guarantees people’s right to be secure against “unreasonable searches and seizures.” Anytime a police officer detains, arrests, or uses force by physically touching someone (including with a bullet), that’s considered a seizure. When deciding whether police actions during a seizure were reasonable, courts won't consider the officers' intentions but will look at all of the other circumstances, including whether the person being seized presented an immediate threat or was actively resisting arrest or trying to flee. And the U.S. Supreme Court has said that courts must allow for the fact that police often have to make “split-second decisions” about how much force is needed (Graham v. Connor, 490 U.S. 386 (1989)).
  • When the use of force “shocks the conscience.” A different standard applies when police aren’t actually seizing someone—for instance, when they use tear gas to disperse a crowd. Under these circumstances, police force will be considered a violation of due-process rights under the Fifth Amendment and the 14th Amendment only if it “shocks the conscience.” To meet that standard, the officers must have maliciously intended to harm the protestors.

Even though courts look more closely at the use of force against people exercising their First Amendment rights, protesters who’ve been hurt by police could find it difficult to prove that their civil rights were violated under either of these standards. But the conscience-shocking standard is particularly tough to meet. And the distinction between these two situations isn’t always that clear—for instance, when demonstrators are hit by tear gas canisters or other less-lethal weapons fired from a distance when law enforcement is breaking up a protest.

Other Police Tactics That May Violate Protesters’ Rights

Along with excessive force, some other law enforcement tactics at demonstrations may violate protesters’ civil rights, including:

  • Kettling.” At several large demonstrations over the years, police have used the technique of corralling everyone within a certain area—often including bystanders and journalists along with protesters—and then arresting everyone caught inside. But courts have consistently held that when police declare an unlawful assembly, they must give an audible order to disperse, and they must allow both enough time to leave and a way to leave. Under international law, police may corral protesters only when it’s necessary, such as to prevent an immediate threat of violence.
  • Arbitrary closures of public space. Police may not close off or clear demonstrators from public spaces (like parks and sidewalks) unless a protest is violent or poses an immediate threat to public safety or order. Although government (including law enforcement) may restrict where, when, and how protests take place, those restrictions must be reasonable and narrowly targeted to serve important government concerns (like public safety), while interfering with constitutional rights as little as possible. In light of these requirements, it’s not surprising that a civil rights lawsuit soon followed after federal law enforcement used tear gas and other less-lethal weapons to clear peaceful protesters from a public park in front of the White House in June 2020, apparently so the president could walk through for a photo opportunity.
  • Arbitrary arrests. In a number of cases in the 1960s, the U.S. Supreme Court held that it was unconstitutional for law enforcement to arrest protesters for vague, catch-all crimes (like disorderly conduct or breach of the peace) as a way of suppressing their First Amendment rights. Despite those decisions, protesters still often face arbitrary arrest. These days, the charges are often dropped, or the arrested demonstrators are never formally charged in the first place. In the meantime, however, they’re forced to spend some time in detention—which stops them from protesting for the time being and may dissuade them from doing so in the future.

Suing Police for Civil Rights Violations

You may sue police officers for violating your constitutional rights while acting with legal authority (42 U.S.C. § 1983). However, in addition to the difficulty of proving excessive force, protesters who want to sue police for civil-rights violations may face another obstacle: Most states have “qualified immunity” laws that shield public employees from civil liability for injuries they cause as part of their official duties (although some courts have held that the laws don’t apply to claims of excessive force by police).

As the doctrine has been developed in U.S. Supreme Court cases, qualified immunity protects police officers unless they knew their conduct violated constitutional rights that were clearly established by previous court rulings. Lower courts have often used that standard to dismiss lawsuits against police because there wasn’t a previous appellate court decision that involved the same facts. In the wake of the mass protests against police violence following George Floyd's killing by a Minneapolis officer, some legislators have proposed limiting qualified immunity.

In the meantime, if you’re facing criminal charges in connection with a protest, you should get help from a qualified criminal defense attorney (if you haven’t already done so). And if you believe that police violated your constitutional rights while you were protesting, you may want to speak with an experienced civil rights attorney to see if you would have a viable civil case against the officers or other government officials. Although these cases are challenging and can take a long time, they sometimes result in favorable settlements—and force changes in police practices.

About the author

E.A. Gjelten

E.A. (Liz) Gjelten has been a special projects editor at Nolo since 2016. A generalist when it comes to subject matter, she enjoys using her research, analytical, and writing skills to translate complex legal issues into jargon-free language that’s accessible to lay readers without compromising accuracy.

Nolo. In addition to her work on surveys about lay people’s experiences with the legal process, Liz writes articles for Nolo.com, Lawyers.com, Criminaldefenselawyer.com, and Alllaw.com in several areas of the law, including workers’ compensation, criminal law, civil rights, school law, and animal law. 

Legal background. Before coming to Nolo, Liz worked for 12 years as a legal author for Thomson Reuters, writing about new legal developments in workers’ compensation and family law for Westlaw and print publications. She also wrote an annual roundup of new California legislation for a monthly family law journal. Before that, Liz worked as an author, legal editor, and managing editor for California Family Law Report, a small legal publishing company.

Other pursuits. Liz has a B.A. in Political Science from the University of California at Los Angeles and an M.F.A. in Creative Writing from San Francisco State University. She’s a produced playwright and has taught at San Francisco State University and New College of California. She’s also worked as a freelance book editor, journalist, and grant writer.

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