“When I joined the military, some 50 years ago, I swore an oath to support and defend the Constitution. Never did I dream that troops taking that same oath would be ordered under any circumstance to violate the Constitutional rights of their fellow citizens—much less to provide a bizarre photo op for the elected commander-in-chief, with military leadership standing alongside.”
– James Mattis, retired four-star Marine Corps general and former defense secretaryUnder what circumstances may the government use lethal and non- or lesser-lethal force in the face of unlawful protests, riots, and looting? The answer is context dependent. But the use of such force—whether exercised by state or federal armed forces—is always constrained by a fundamental constitutional principle of reasonableness, so long as no armed conflict exists. Although I agree with everything Mark Nevitt wrote in his Just Security article on the powers and limitations of the President’s response to the recent protests, it is important to ground the discussion in constitutional norms — rather than just Department of Defense understandings or policy — which would apply to use of the US military as well as federal and state law enforcement authorities.
It is critical to understand the scope of the state and federal governments’ authority to use physical force against individuals. Although federal and state authorities generally have authority to control domestic violence and discretion to determine the means necessary to do so, they must exercise that authority and discretion reasonably under the U.S. Constitution. In fact, the use of force continuum to which law enforcement agencies generally adhere as policy should be understood to be a constitutional requirement.
The Use of Force and the Constitution
All uses of lethal and non- or lesser-lethal physical force by government agents must be reasonable under the circumstances. This is not only wise policy, it is a constitutional demand. Reasonableness is required either by the Fourth Amendment or by the general constitutional demand that all government action be reasonable and non-arbitrary. In this context, the latter reasonableness requirement—that all government action be reasonable and non-arbitrary—can also be based in the Due Process Clauses of the Fifth and Fourteenth Amendments which protect against government infringements of personal liberty, including the infliction of physical injury.
Although not all measures to control crowds, riots, or looting necessarily implicate the Fourth Amendment, some certainly would. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures.” Searches and seizures always entail the use of some measure of actual or constructive “force”—broadly construed—against persons and property.
The Fourth Amendment requires that all searches and seizures be reasonable. Courts interpret this requirement contextually. Reasonableness has substantive and procedural components. Substantively, there must be a legitimate constitutional basis for a search or seizure. Procedurally, both must always be conducted or “executed” reasonably. Measures adopted to control riots, looting, and crowds typically restrict or deprive individual movement, and therefore implicate “arrests” and other “seizures.”
Arrests involve substantial restraints on one’s freedom of movement, typically taking someone from a public or private place where they have a right to be and placing them in government custody. Substantively, arrests require probable cause that the individual committed a crime. Procedurally, police may make arrests without a warrant for any crime committed in the officer’s presence or for a felony committed outside of an officer’s presence. Additionally, police may use only reasonable force to effect an arrest.
Seizures occur when someone’s movement is temporarily restricted in some meaningful way by an intentional show or use of government authority, including force short of an arrest. Substantively, in a law enforcement context, seizures are constitutional if they are based upon a reasonable suspicion that criminal activity is afoot or if there is some other specific, legitimate law enforcement purpose. Criminal behavior could include looting, assault, trespassing or a curfew violation. Other legitimate purposes for a temporary stop might include checking identification for a limited access area (such as by verifying press credentials, employment or residency) or seeking information related to a recent crime in the area. Procedurally, seizures are constitutional if the measures taken to effect a seizure, and during it, are reasonable under the circumstances. For example, stopping a suspicious person and conducting a non-intrusive frisk for weapons is appropriate if there is a reasonable suspicion both that the person may be involved in criminal activity and that they are armed and potentially dangerous.
Riot- and crowd-control measures include arrests and seizures, but not all measures would necessarily involve one or the other. Often, in these situations, an individual’s movement or behavior is restricted or limited in some way, but they are “free to leave”—in Fourth Amendment terms—to go somewhere or do something else. A seizure occurs only when an individual is temporarily and intentionally immobilized, whether voluntarily or involuntarily, by a government agent. Efforts to effect a seizure or arrest must always be reasonable under a totality of the circumstances.
Notwithstanding the Fourth Amendment, there is also a strong argument that all government action must be reasonable in order to be constitutional. Generally speaking, government action must be reasonably calculated to achieve (or rationally related to) a legitimate government purpose. The government action must also be a reasonable and permissible means of achieving that legitimate purpose. As Justice Marshall wrote in McCulloch v. Maryland:
Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.
This is a general principle of constitutional law. Government action must be “appropriate” and “plainly adapted” to its alleged purpose. Not only must it not be “prohibited” by the Constitution’s text, it must be consistent with the Constitution. Every use of physical force not amounting to a “search” or “seizure” must also, therefore, be reasonably directed to a legitimate end and reasonably necessary under a totality of the circumstances.
The Insurrection Act Does Not Alter These Constitutional Requirements.
The Insurrection Act allows a president broad discretion to use as much of the federal armed forces and state national guard units as he or she deems necessary to quell insurrections against the authority of a state or to remove substantial interferences with the enforcement of federal laws. A president could invoke either of these justifications in response to widespread riots and looting.
These statutes allow a president to “take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination or conspiracy.” Despite this broad language, the president may not authorize the armed forces to do anything he would like. Although the exigencies of a situation may require some deference to on-the-spot judgement calls, Congress cannot empower a president to violate specifically applicable aspects of the Constitution. The requirement that the use of all physical force be reasonable under the circumstances is one such specifically applicable constitutional requirement.
Recent Examples
Unreasonable use of lethal force that violates the Fourth Amendment.
The President has infamously tweeted that “when the looting starts, the shooting starts.” In Tennessee v. Garner, the Supreme Court held that the use of lethal force to stop a fleeing suspected felon is a Fourth Amendment “seizure” that must be “reasonable.” In this context, lethal force is reasonable only if the suspect presents a threat of serious harm to the officers or others. Shooting unarmed looters who are not engaging in any form of violence against a person would therefore clearly violate the Fourth Amendment as interpreted by the Supreme Court.
Unreasonable use of non-lethal force that violates the Fourth Amendment.
A viral video on social media apparently shows Minneapolis law enforcement shooting several people with rubber bullets or paint balls to force them to go inside a house rather than stand on a private porch. The officers were allegedly enforcing a curfew order. That order, however, prohibited only travel on public streets or places (with certain exceptions not relevant here). Violating the order is a misdemeanor. The curfew is likely a constitutionally reasonable response to the disorder and turmoil that has been taking place in Minneapolis. The City’s website containing the order specifically clarified, however, that people may be outside a home as long as they were on private property.
Under these circumstances, the use of non-lethal force to compel someone on private property to go inside a home was not rationally related to enforcing the curfew order. It also appears to lack any other basis in law and was undertaken without warning. Police were apparently shouting that people go inside their homes. When these individuals did not do so and continued recording, an officer said only “light ’em up” before the police fired. No additional warning and no explanation for the over-enforcement of curfew order were given. It would therefore amount to an unreasonable use of non-lethal force. Because the purpose was to confine someone in their home, and doing so is likely a “seizure,” it also violated the Fourth Amendment. The officers undertaking this action are guilty of an assault. The city is also subject to a civil action under federal law.
Another viral video shows several Georgia police officers apparently arresting two college students inside a car, smashing the car’s windows and using tasers on both individuals despite no visible resistance. Under these circumstances, the use of force would not reasonably necessary to effectuate the arrest to enforce the curfew order. Indeed, two days later, the Georgia chief of police fired two of the officers pictured in the video, and the Atlanta mayor condemned the officers’ actions.
Unreasonable uses of force not implicating the Fourth Amendment.
On Saturday night, May 31, 2020, there were reports of Minneapolis police firing rubber bullets and using tear gas and flash-bang devices to disperse allegedly peaceful crowds or protesters, all without warning. Numerous videos indicate that reporters and their cameramen have been pushed and shoved without warning despite their obvious status. And police in Washington D.C. reportedly used rubber bullets and tear gas to break up peaceful protesters outside the White House this past Monday night on June 1, 2020. This included a now-viral video of police and/or national guard, without warning, striking an Australian reporter and her cameraman with a baton and riot shield, respectively, before also being shot with rubber bullets. And several videos from New York City and Los Angeles over the past week seem to show police driving cars into protesters.
Let’s assume the police were correct that a lawful government directive or purpose required the people affected to disperse or leave the area at the time and place that these forcible measures were used. Using such non-, lesser-, or potentially-lethal force without prior warning would be unreasonable if less stringent measures were feasible. Invasions of liberty and personal integrity such as occurred in these incidents must have some specific justification, including the absence or failure of feasible, less-intrusive coercive measures.
These examples do not involve a Fourth Amendment search or seizure. Not only were the individuals “free to leave”—meaning they were not “seized” under court precedent—they were forced to do so. But even assuming that end was appropriate, can we say the use of tear gas, flash-bang grenades and less- or non-lethal bullets was proper? Can we say that potentially grievously injuring a person by running into them with a car is a reasonable response? Was it consistent with the Fifth and Fourteenth Amendments to the Constitution? Absent some reasonable justification for failing to use lesser coercive measures, the answer is almost certainly no.
Because reasonableness surrounding the use of physical force is a constitutional requirement, nothing in the Insurrection Act would change the above legal analysis. It does not matter if the government agents are members of the national guard or federal armed forces or of the city police or state troopers. Whether acting under state or federal authority, the U.S. Constitution imposes the same constraints.
The authority to quell riots and looting must be exercised responsibly, meaning reasonably, at every level. All law enforcement officers, members of the National Guard and members of the federal armed forces must be told and trained to use force only when necessary and only when it reasonably appears that lesser means of coercion are not feasible under the circumstances or have failed. Warnings should be given before using physical force when possible. The Department of Justice and many law enforcement agencies refer to this as the “use of force continuum.” The continuum is not merely policy, however. It must be understood as a constitutional demand. Reasonableness is determined by what a government agent reasonably perceived in good faith under a totality of the circumstances. Those who have sworn to protect this country and its population have been vested with great power and must therefore show great restraint in the use of physical force.