June 24, 2020 Chair's Column

Chair's Column: June 2020

Right of Assembly and Protest

By Albert C. Harvey

Two months ago, in my chair’s column, I wrote about the use of the military in a pandemic. The point of that article was to respond to those advocating activation of the militia or employment of active duty armed forces to handle domestic situations. The military does not want to be put in those situations, and neither should the political leaders or members of the public want them there.  It is not their mission.

With the events of the days following the death of George Floyd, we have again heard those pleas to “send in the troops” to “dominate the neighbors.” These events bring to the front another critical principle – the right of citizens to protest the actions of their government.

The language of the First Amendment to the Constitution recognizes the “right of people peaceably to assembly, and to petition the government for redress of grievances.” For the most part, that is what we have seen in every major city and in every state in the union. When people assemble to protest, we cannot forget that bedrock principle which has guided our country for over 200 years. 

There are those few that take advantage of such a situation to riot or commit acts of violence. Those who commit those lawless acts must be prepared to face the consequences of that conduct. But who should make those arrests? Our law enforcement personnel and our first responders are almost always capable of handling those situations. If the government officials determine that law enforcement needs assistance, they can call out the militia to support, but not to take the place of our first responders. Usually, the militia are trained in the techniques of support and are usually from the same community. 

While the President may invoke the Insurrection Act to send troops, it was never designed for these situations. It was first employed by President George Washington to quell the whiskey rebellion when local officials were not capable of handling the situation. In my lifetime, it has been used twice. In 1956, when Arkansas Governor Orval Faubus refused to enforce the laws, President Dwight D. Eisenhower sent the 82nd Airborne Division to Little Rock to ensure civil rights for African-American high school students  to attend Little Rock High School. At the request of Governor Pete Wilson in California 30 years ago, marines from Camp Pendleton were sent to Los Angeles to assist in stopping the riots. 

Concerning the recent events, several military leaders have spoken out that the current situation was not one for the deployment of the military. These voices include former Secretary of Defense James Mattis, and several  of the former members of the Joint Chiefs of Staff of the Armed Forces. Those leaders understand that citizens must have trust in their military to protect them from our enemies – not to police or control domestic life. Our Constitution speaks to that principle and our courts have recognized it in several decisions.

Concerning the current protests, many government leaders have now recognized the problem of unevenness in the enforcement of our domestic laws by various police departments.  Government leaders appear to be listening to these protests and responding where needed. Whether these responses are enough, only time will tell. Lawyers, particularly senior lawyers, recognize that the Rule of Law must be preserved. There must be equal justice, for all, under law. 

The President of the American Bar Association, Judy Perry Martinez, has spoken for us when she wrote: “Our Society and the safety of the people who comprise it – citizens and law enforcement – rely on the rule of law.  But the law must be fairly applied and enforced.  All citizens need to have faith that our justice system is fair, and our laws are applied equitably. It is also essential that laws and authority are respected and followed.”

As leaders of the legal community, we must be prepared to listen to legitimate grievances and to support actions to correct where there are deficiencies. We must ensure that there is access to justice for all Americans. Lawyers can work through their law firms, bar associations, legal services organizations, and individually. The future of our legal system depends on it.   

Al Harvey, Chair Senior Lawyers Division



Albert C. Harvey has an extensive practice in federal and state courts defending doctors, lawyers, architects, engineers, and other professionals. He is involved in complex business litigation, intellectual property disputes, and securities cases.  Mr. Harvey has a special interest in national security and governmental affairs and frequently lectures, teaches, and consults with clients on these matters. In addition, he has served at the state and national levels on setting ethical standards for lawyers and judges. Mr. Harvey recently retired from the United States Marine Corps Reserve with the rank of Major General.