When police should issue warnings - Michael Dorf on law
By Michael C. Dorf [Cornell Law School]
As I noted on the blog (here and here), last week and over the weekend, I attended Vegan Summerfest. My talks went well (I thought), but in today's essay I want to focus on a case I learned about during a side discussion. One of the best parts of just about any conference is the opportunity for informal conversations and the forging of connections. Today's essay is inspired by one such conversation with Dr. Faraz Harsini, whose remarkable personal story I urge readers to check out. Here I'll focus on one incident in which Faraz was involved, which implicates the following question: when should police give warnings before arresting someone?
A few years ago, Faraz and Daraius Dubash were participating in an animal rights demonstration in a public park in Houston. The demonstration was non-disruptive. It consisted of showing videos of what happens to animals used for food. The roughly half-dozen demonstrators did not approach passersby but did talk with anyone who approached them. They were then approached by police officers and told to leave--ostensibly because the park is "private," even though it is in fact a public park owned by the city of Houston. (A management company operates the park, but that doesn't render it private for constitutional purposes.) Dariaius is seen on camera asking the officers whether they are threatening to arrest him if he does not leave; the officer says that he's not threatening him; Dariaius then says that because it's a public park, he'll stay to exercise his right to free speech; at that point the officer arrests him.
I'll say more about the broader context below, but I want to focus on that moment--which you can watch at the very beginning of this video. Daraius makes clear that he will in fact leave if threatened with arrest but the police evidently want him to leave "voluntarily" in the sense that he is leaving just because he wants to leave and not under threat of arrest. What legitimate purpose is served by the officer not clearly informing Daraius that yes, he will in fact be arrested if he doesn't leave?
It's easy to deduce an illegitimate purpose for the officers' conduct: They worry that they do not have good cause to arrest Daraius. If they tell him that he'll be arrested if he doesn't leave and then he leaves, he might sue the police for unconstitutionally interfering with his right to free speech. But if they don't threaten arrest, then they can say (not all that plausibly, in my view, but with a bit more plausibility than in the situation where they do threaten arrest) that there was no free speech violation because Daraius left voluntarily.
I can't say for sure that that was the reasoning of the police. After all, they did in fact arrest Daraius and charge him with trespassing. The charges were dropped but not before Daraius spent 16 hours in jail. Meanwhile, Daraius and Faraz sued for injunctive relief allowing them to hold further demonstrations in the park. They asserted First Amendment and Fourth Amendment claims. So if the police were trying to avoid a lawsuit by not threatening arrest they failed. Even so, that doesn't mean they weren't using the strategy I've suggested. They might have figured it was worth trying to induce the protesters to leave without threatening arrest and, when that didn't work, proceeded to make the arrest.
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