Anonymous police threaten people’s freedom to assemble | TheHill – The Hill

The widespread attacks by law enforcement against peaceful First Amendment demonstrators in the wake of George Floyds murder are deeply concerning as a matter of core constitutional law principles. But the fact that many officers spread across Washington, D.C., and other places lacked legibleinsigniaindicating who they were and whom they work for borders on the bizarre.

Attorney General William BarrBill BarrMilley discussed resigning from post after Trump photo-op: report OVERNIGHT DEFENSE: Joint Chiefs chairman says he regrets participating in Trump photo-op | GOP senators back Joint Chiefs chairman who voiced regret over Trump photo-op | Senate panel approves 0B defense policy bill Trump finalizing executive order calling on police to use 'force with compassion' MOREexplained,In the federal system, we dont wear badges with our name I mean the agents dont wear badges and their names and stuff like that, which many civilian police ... agencies do. Like all of Trumps closest cadre, recent history has shown that Barrs words cannot always be trusted as accurate. So, arefederal officers legally required to wear badges and, if not, should they be?

Somewhat astonishingly, there is no federal law requiring federal law enforcement to identify themselves to the public when they are conspicuously acting in their official law enforcement capacities. Weve all heard ofplain-clothes or undercover copswho routinely pose as private citizens for crime prevention and detection. The practice is legal, so long as the officer does not induce a person to commit a crime that the person wouldnt have otherwise committed. That would be entrapment, which is illegal.

But thedisplayof brute force in riot gear and no badges for purposes of intimidating First Amendment demonstrations is a different matter. The very presence of police officers dressed as police officers in the public square hinders the full exercise of certain constitutional rights such as the right to free speech, free assembly and freedom of movement. People might alter legal behavior to conform to the police presence.

To take a simple example, a family visiting Washington, D.C., will likely stop in its tracks if it sees armed men blocking the steps to the Lincoln Memorial. If the family walks to the White House and finds droves of black-clothed officers with large, military-grade weapons slung over their shoulders, the same family might leave the city altogether foregoing their rights to speech, assembly and freedom of movement in downtown Washington, D.C. The familys reaction would be particularly swift if as was the case with the George Floyd protests they know that the government recentlyemployedtear gas, batons, low-flying helicopters and rubber bullets on innocent civilians and members of the press who happened to be in an area that President TrumpDonald John TrumpSenate advances public lands bill in late-night vote Warren, Democrats urge Trump to back down from veto threat over changing Confederate-named bases Esper orders 'After Action Review' of National Guard's role in protests MORE wanted cleared to enable hisphoto-opin front of a nearby church.

The D.C. coderequiresthat local police display enhanced identification when policing First Amendment assemblies, but federal officers arent bound by it. Federalregulationsdo allow Barr to deputize people to perform the functions of a Deputy U.S. Marshal, including [s]elected officers or employees of the Department of Justice and [o]ther persons he designates. The officialwebsiteof the U.S. Marshal Service explains the importance of badge credentials as representing official notice of agency powers and true authorization to perform assigned duties.

Although Barr is not legally bound to publicly identify each member of his riot forces, he is ethically and normatively bound. Thestandardsfor the police published by the United Nations High Commissioner for Human Rights include wear[ing] clearly visible identity badges to facilitate accurate reporting of human rights violations by the government. It doesnt take a policing expert to understand why.

America is a representative democracy in which people exercise self-governance. We do this by holding elected officials accountable at the polls and in the courts. Unlike private individuals, law enforcement officials have tremendous power over life, liberty and property. Regular people cant put their adversaries in jail that would be kidnapping.

Because itshuman natureto abuse power, we have courts that hear cases of police brutality and elections that properly place responsibility in the hands of elected officials ultimately charged with policing the police. But if we do not know the identity or employer of someone who is exercising police power, it becomes exceedingly difficult to hold that person and their elected bosses accountable.

Even worse, anonymous gun-wielding police invite vigilante copycats. Prior to the George Floyd murder, the nation was transfixed on the mounting deaths due to COVID-19 and the satellite protests over state stay-at-home orders, some byarmed private militiamembers. Barr and President Trump irresponsibly pointed the finger at amoebicanti-fascist groupsfor the unrest, but the Department of Justice, thus far, has brought no cases against linked defendants. But more to the point, by threatening protesters with badgeless, federal-looking bullies, Barr is stoking the militant flame not quelling it.

Keep in mind that the First Amendment binds all holders of government power from the president down to a local town official. Under theSupreme Courts constructionof the Constitution, the state cannot punish speech in connection with public demonstrations unless the speech has gotten so out of control that it is about to cause injury. Strong emotions, political protest and the risk of violence are not enough.

History will not look kindly at the response by Trump and Barr to the First Amendment demonstrations in Lafayette Square; the efforts turned violent at their direction and with no documented escalation by the people both men swore to serve. The fact that Congress has never passed legislation requiring that the injured know who is at the other end of a federal gun barrel merely suggests that Trump once again has gone beyond where any White House occupant has gone before.

Congress needs to enactpending legislationthats aimed at remedying this true blind spot in federal law enforcement standards. It should do it immediately so that the next time Trump jousts with the First Amendment through police violence, the people are better protected.

Kimberly Wehle is a visiting professor of Law at American Universitys Washington College of Law, and author of the book "How to Read the Constitutionand Why." Follow her on Twitter @kim_wehle.

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Anonymous police threaten people's freedom to assemble | TheHill - The Hill