Violations of Protesters’ First and Fourth Amendment Rights
When individual members of the law enforcement community use force, arrest a person, or prosecute a person in retaliation for the exercise of clearly established First Amendment rights, there is a potential cause of action under the First and Fourth Amendments. This is especially true when there is an absence of probable cause, as required by the Fourth Amendment. However, if protesters were arguably violating some minor law during the protest, their claims may well be barred (see Michael Avery et al., Police Misconduct: Law and Litigation § 2:16 (3d ed. 2017–2018)).
A civil action for deprivation of rights is established under 42 U.S.C. § 1983, which states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .
Since the enactment of the Attorney’s Fees Act of 1976, 42 U.S.C. § 1988 (allowing successful litigants in § 1983 actions to recover their costs of litigation and their attorneys’ fees), tens of thousands of lawsuits have been filed in federal court against the law enforcement community. Actionable claims under the federal civil rights acts include, but are not limited to, the following: false arrests and detention, warrantless arrests, arrests made under a warrant, arrests under unconstitutional statutes and ordinances, malicious prosecution, abuse of process, retaliatory prosecution, excessive force and physical brutality, illegal search and seizures, denial of First Amendment rights, denial of Fifth Amendment rights, conspiracies to violate civil rights, and gross negligence amounting to deliberate indifference in the failure to train, supervise, and discipline police officers. Recoveries in these cases could include compensatory damages, punitive damages, and equitable relief. Police officers may also be liable for damages as a result of their intentional torts, as outlined above. Recoveries against the law enforcement community and the government entities that employ them (or private parties that act in conspiracy with them) have included settlements and verdicts in amounts up to $50 million (see Avery, supra). At least 19 cities across the United States have agreed to pay out a total of more than $80 million in settlements to protesters injured by police during 2020 racial justice protests. These protests against racism and police brutality were sparked by the murder of George Floyd by Minneapolis police officers on May 25, 2020. Experts believe that this figure is unprecedented and will rise further as many lawsuits are still being litigated (see Gloria Oladipo, US Cities to Pay Record $80m to People Injured in 2020 Racial Justice Protests, Guardian (May 25, 2023)).
In order to avoid claims for ineffective assistance of counsel and legal malpractice, any attorney involved in protest and riot cases must be aware of all the potential consequences for crossing the line (see Padilla v. Kentucky, 559 U.S. 356 (2010), in which the Supreme Court held that defense attorneys must inform non-citizen criminal defendants about the risk of deportation based on a conviction when they are deciding whether to plead guilty; see also Charles J. DiMare & Eleanor Southers, Adding Civil Disobedience Defense to Your Practice, GPSolo, May/June 2018, at 18). In other words, it is essential that attorneys involved in protest cases have a working understanding of the differences between protected freedom of speech and expression, protected freedom of assembly, and protected rights to petition the government for redress of grievances. Obviously, riots, violence, and insurrection are not protected by the First Amendment.
Violence, Rioting, and Criminal Activity During Protests
Taking action in order to create social change is at the heart of our constitutional democracy. However, protesters and other activists must be mindful of possible criminal prosecutions, civil lawsuits, administrative actions, and other resulting and collateral consequences of their involvement in protests that involve violence or destruction of property or that evolve into a riot or an insurrection.
Many violations of various criminal statutes may have little consequence in the context of most protests and demonstrations. Even mass arrests that involve hundreds or thousands of participants sometimes result in dismissal of all charges. Nevertheless, other actions could result in criminal convictions that may include misdemeanors or felonies with penalties, such as fines, probation, jail and long prison sentences, and many other collateral consequences. Depending on whether the jurisdiction is federal or state, commonly charged crimes include unlawful assembly, refusal to disperse, resisting an officer, giving false information to a police officer, disturbing the peace, disorderly conduct, trespassing, destruction of property, assault and battery on a public employee, assault and battery, and threats to commit a crime. State statutes of limitations could vary from one to ten years for misdemeanors and seven to 20 years (or no statute of limitations) for felonies (for more specific examples, see Richard A. Leiter, National Survey of State Laws 137 (8th ed. 2019)).
A summary review of the criminal prosecutions of some of the 2,000 people involved in storming the U.S. Capitol building on January 6, 2021, offers informative illustrations. Many of these participants engaged in the confrontation to obstruct the certification of the Electoral College vote and to prevent members of Congress from discharging their duties that govern the peaceful transfer of power. Many others assaulted, resisted, or impeded law enforcement officers or employees or destroyed or stole government property. As of September 2023, some 1,146 participants have been arrested, and more than 623 of them have received criminal sanctions (32 Months Since the Jan. 6 Attack on the Capitol, U.S. Dep’t of Just. (Sept. 6, 2023); this is the final update made prior to this article being finalized and is the source of all statistics that follow in this paragraph). Also, note that 113 people have been found guilty at trial, and 657 people have pleaded guilty for their role in the January 6 attack on the Capitol. Convictions for low-level misdemeanor offenses, such as unlawful assemblies, have resulted in penalties including fines, community service, and probation. Some 378 defendants convicted of more serious crimes have been sentenced to periods of incarceration. Additionally, 126 rioters have been sentenced to home detentions, and dozens of others have received prison sentences ranging from one month for a college student convicted of entering a restricted building to ten years for a former police officer and Marine who attacked the police with a metal flagpole and tackled another officer and pulled off his gas mask.
On September 5, 2023, Enrique Tarrio, the former leader of the extremist far-right group known as the Proud Boys, was sentenced to 22 years in prison for seditious conspiracy and other charges for his role in planning the insurrection. It should also be noted that Former President Donald Trump is also facing four felony charges for his role in the January 6 insurrection.
Some of the more serious convictions resulting from the January 6 insurrection involve seditious conspiracy. Per 18 U.S.C. § 2384, “[T]wo or more persons . . . [who] conspire to overthrow, put down . . . the Government of the United States . . . or by force to prevent, hinder, or delay the execution of any law . . . or by force to seize, take, or possess any property of the United States . . . shall be fined . . . or imprisoned for not more than twenty years or both.” Many of those convicted under this statute are currently awaiting sentencing.
Other federal crimes potentially committed on January 6, such as civil disorder, prohibit adversely affecting any federally protected function or obstructing any law enforcement officer from the performance of official duties. Such an offense may be punished by up to five years in prison. Those at the Capitol that day also might have violated the Federal Riot Act, 18 U.S.C., §§ 2101–02, which applies to anyone who travels interstate to incite, promote, or participate in a riot, including aiding and abetting. This crime is also punishable by up to five years in prison.
Convictions of federal laws for inciting, assisting, or engaging in any rebellion or insurrection against the United States could result in up to ten years in prison. Most federal crimes carry statutes of limitations ranging from five to 20 years, but for others involving capital offenses, death, or serious injury, or for acts of terrorism, there are no statutes of limitations (for more, see 650. Length of Limitations Period, Dep’t of Just. Archives (Jan. 22, 2020); Charles Doyle, Congr. Rsch. Serv., Statute of Limitation in Federal Criminal Cases: An Overview (Nov. 14, 2017)).
Civil Liability and Other Consequences of Actions During Protests
Protesters and those engaged in civil disobedience must also consider the possibility of civil liability when they cross the line and engage in unlawful activity. Liability for the following intentional torts is commonly recognized: assault and battery, defamation, false imprisonment, intentional infliction of emotional distress, interference with business relations, interference with contractual relations, conversion, trespass to chattels, trespass to land and buildings, malicious prosecution, and abuse of process.
Findings of liability (and case settlements) for any of these intentional torts could be very substantial. For an example where the First Amendment is not a defense, consider the $787.5 million settlement reached in April 2023 between Fox News and Dominion Voting Systems (a voting machine company) in a defamation case. This litigation was based on false claims made on Fox News about Dominion Voting Systems as part of the network’s coverage of the 2020 presidential election. In this case, Fox News claimed, as part of its defense, a First Amendment right of freedom of the press to make the unfounded false claims it said about Dominion. The court found that the statements made about Dominion by Fox News were false. Therefore, obviously, these false statements were not protected by the First Amendment.
Similarly, substantial damages may be awarded or agreed on as part of a negligence claim settlement when (1) there is an existence of a legal duty of care between a defendant and a plaintiff; (2) the defendant breached the duty of care by failing to exercise it; (3) the plaintiff suffered damages; and (4) the damages suffered are causally related to the breach. Whether or not there is an existence of a legal duty of care is usually a question for the court. Juries, as fact finders, usually decide whether the other three elements of a negligence claim, as stated above, are proved by a preponderance of the evidence. (For numerous other examples of negligent and intentional torts, see Timothy Zick, The Costs of Dissent: Protest and Civil Liabilities, 89 Geo. Wash. L. Rev. 233 (2021).)
In addition to criminal prosecutions and civil lawsuits, individuals involved in peaceful protests who cross the line to engage in riots, violence, and insurrection face many other collateral consequences. These include, but are not limited to, adverse effects in higher education, employment, immigration status, child custody, adoptions, the ability to work with children, welfare, travel to many countries, professional licensing, business licenses, driving licenses, voting rights, and the right to possess a firearm. These same consequences could also adversely affect individual members of the law enforcement community and their supervisors. (For further discussion, see A.B.A., Collateral Consequences of Criminal Convictions: Judicial Bench Book (2018).)
Conclusion
Exercising First Amendment rights by assembling peacefully with a group of people for a rally, march, boycott, sit-in, or picket line and expressing and publishing opinions are important components of our constitutional democracy. However, crossing the line into criminal activity, including riots, property destruction, violence, and insurrection, could have substantial adverse consequences of which people must be aware. Hopefully, this article will be a starting point for attorneys and educators to better understand the myriad possible consequences, both positive and negative, for those who decide to participate in these activities.