Wood for the Trees

How to police a protest with Edward Maguire

May 16, 2023 Cait Macleod Season 1 Episode 7
Wood for the Trees
How to police a protest with Edward Maguire
Show Notes Transcript

The police have a duty to protect our right to protest while maintaining public safety. Too often they get the balance wrong. 

Edward Maguire  is a professor of criminology and criminal justice at Arizona State University and the author of a guidebook on policing protests safely. 

He talks to Cait about crowd psychology, the history of protest policing, and his advice for police who take on these challenging events. 

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For background reading and a list of references, visit cantseethewood.com

Cait Macleod:

When I was a student at the University of Cape town in 2015, a student defaced a statue on campus. The statue was of Cecil John Rhodes, a controversial colonial figure who once owned the land, where the university now stands.

It sparked a series of protests that spread across the country and shut down the university for weeks. Some of the protestors turned riotous. The vice chancellor's office was even petrol bombed at one point. Private security were called because the police were overstretched. And then reports emerged of security using excessive force to subdue protestors.

At the time, it all felt very particular to that moment. But protests that escalate into violence are a habitual part of the news cycle.  Even in democracies. And perhaps most concerningly in democracies. 

Five years later, after the murder of George Floyd, protests both against and in favor of police turned violent across the US.

Then in 2022, closer to my neighborhood the Met police in London arrested women who had gathered for a peaceful vigil for Sarah Everard, a woman murdered by a Met officer.

These are just incidents that appeared on my radar. But no doubt, regardless of your age or where you are, you can recall breaking news of a protest gone wrong.

We have records of protests going back to the 12 hundreds. So why are we still so bad at managing them? And what can we do to avoid tragedy in the  future?

You're listening to Wood for the Trees. I'm Cait Macleod. Throughout this season, we've been exploring controversial questions around the theme of policing and justice. We're going to finish up with that theme by talking about protest policing.

My guest today has literally written the textbook on policing protests safely. He's got a very balanced view that takes into account perspectives from both sides of the skirmish line. So let's get started. 

So could you start off just by introducing yourself and telling me a little bit about your background?

Edward Maguire:

My name is Ed Maguire. I'm a professor of criminology and criminal justice at Arizona State University in Phoenix. And I specialize in the study of policing and violence, which over the past decade has taken me into the depths of trying to understand the police response to crowd events, including protests.

Cait Macleod:

And what made you interested in this area?

Edward Maguire:

Back in 2011, when the Occupy movement which started in Zuccotti Park in New York City and spread outward throughout my country and in many other countries, the evening news and social media, which wasn't so prominent then, was on a daily basis featuring imagery of and news coverage of police and protestors clashing in various cities. The optics were terrible, right? Like it was, you know, police firing less lethal munitions and various types of chemical agents at crowds.

And so at the time I happened to be teaching a very small pro seminar with just...It was called a pro seminar in justice with only four or five graduate students, masters and PhD students. And every week when we would talk about the various topics that were in my syllabus, somehow the conversations  kept coming back to protests and  from their perspective what they were seeing was a lot of injustice  in how police were handling the events not in every city, just in certain cities.

And so it almost became a running joke. It didn't matter what was on the syllabus. Eventually we were going to end up talking about the protests again. And  because it was such a small class and I kind of had the discretion to take the class in whatever direction seemed appropriate, one week I just said to the students, you know, we actually have an Occupy encampment,  actually we had two Occupy encampments in Washington DC just down the road. You folks seem to be so interested in it. What do you say? We just take a little field trip and we go down and we talk to the, to protestors.

And so we did. And when we went to talk to the protestors, an odd thing happened that I just wasn't expecting because I was not a specialist in this area at the time.  I was only loosely following it was some of the people we talked to started crying. In the conversations that we had with them, when we would say, you know,  what's your experience of dealing with the police at this event and or in this encampment?

And I was just really taken aback  by the intensity of, of the emotions that they were, experiencing. I almost felt like I was subjecting them to some sort of secondary trauma by asking them about these events. I mean, it was a very very clearly a trauma response that we were getting, which led me to wonder, you know, what's behind this? Like, what is feeding all of this, all of all of this emotional intensity that we're experiencing.

And of course, we heard lots of stories and so forth, and so we turned that into a survey,  that project,  where we surveyed Occupy protestors in multiple cities. We ended up publishing the results from Washington DC and from New York City.

And just from there it just kept going. It's, it's, that's the way research trajectories tend to go, right? You get a little opening and you start exploring something and it becomes more fascinating  and here I am, 11 years later, still following it.

Cait Macleod:

Can you give an example of what those protestors were saying to you when you first went out and talked to them? 

Edward Maguire:

  One of the  young women who cried when we talked to her, we asked her about the police use of dogs, like, you know, the, are the police bringing dogs in? And they said, no, not dogs. You should be asking about horses. And I, I, I was very surprised by this. It didn't even occur to me to ask about horses.

And what she explained was that  when the police raided the encampment, they were stepping on people with the horses that they were riding. And that this was a very traumatic experience, not only emotionally and mentally, but also physically traumatic, like being trampled on by horses.

So that was one of the, one of the stories told to us by  a young woman who was crying when we talked to her about these things.

Cait Macleod:

So protests are not a new phenomenon. We've had lots of opportunities to learn from them and study them and understand what goes wrong and how we could police them better.

So why do they still go wrong?

Edward Maguire:

I think that we, we have a tendency in policing to learn lessons and then unlearn lessons. And so we've seen a very kind of cyclical response to protests over the years where, you know, it became clear in the United States, for instance, it became pretty clear in the sixties that the response to protests was, was,  you know, pretty overwhelming and egregious. And so police toned it down in the seventies and eighties.

And then, you know, certain events happened that lead them to kind of ramp back up and then ramp back down. And, and so one of the things that we run into in this country is, and I think this is elsewhere, I just haven't studied it so much, but, Police have a tendency to sort of vacillate between over responses and under responses. Right?

And so,  in the United States, we under responded to events in Charlottesville at the Unite the Right Rally in Charlottesville. The police dramatically under responded, and so it was only a matter of weeks because police under responded in Charlottesville and were kind of run over and people died and so forth, there was only a matter of weeks before police in the United States were back to over responding to protests. Right. 

And certainly the police over responded in, in, in many cities to the George Floyd protests, not in all cities, but in many cities.  And then what did we do in the US Capitol insurrection? Well, we dramatically under responded again, right? And so we have this kind of cyclical kind of vacillation and, and I, you know, I think that's a real problem. And what we're aiming for is this sort of optimal level of accommodation for protests. And like any optimization problem, it's always sort of slightly beyond our reach.

Cait Macleod:

Just  based on the examples that you gave there, and also, you know, a lot of popular opinion, it's tempting to think that the police favor one side of protest over the other. You know, it sounds like they're sort of supportive of people more on the right wing perhaps than on the left, or they crack down on some ideas more than others.

Do you think that's coincidence, or is there a sense that the police are sort of ideologically aligned with some ideas more than others?

Edward Maguire:

I think there's no question that the police tend to be more conservative.  And so potentially to align more with conservative causes and conservative protestors.

We have some research evidence in the United States, which suggests that police tend to over respond to left-leaning protests and to under respond to right-leaning protests. The research is really preliminary. And so it's really difficult to... because there are so many factors in, these, these protests are so different from each other. And so , it's really difficult from a researcher perspective to draw the firm conclusion, you know, police are biased in one direction and not the other.

But what's fascinating is, you know, this is more anecdotal, but when I talk to, cuz I, I go to protests on both sides and when I talk to left-leaning protestors, they say, you know, the police are biased against us and when I go to right-leaning protests, they tell me, the police are on our side.

And so it's actually an interesting point of, of agreement between the two sides. Both sides believe that police favor the right, so I think we have a lot more research to do on that, but it certainly seems to be leaning in that direction.

Cait Macleod:

Interesting.  I suppose that makes sense given that a lot of the left is, could be portrayed as more anti-police than the right.

Edward Maguire:

Yeah, I think that's right. Although it is starting to shift in this country, where we're starting to see be because there was a lot of overlap between conservative protest groups and the Back the Blue movement in the United States but you know, I, it was interesting in the months leading up to the Capitol insurrection of January 6th, you started to see  some cracks in that relationship.

Back when we still had Parler,  which is a social media group that was very heavily  right-leaning in the months leading up to the insurrection, you started seeing really unhinged, very violent kinds of comments about the police, but it was not about the police everywhere.

It was about the police in Washington, DC and certain other cities that were perceived as being  blue cities or, you know, cities with democratic mayors or. Or things like that. And so for instance, there were just vile, very aggressive, very violent threats against the police in Washington DC in the months leading up to the Capitol insurrection.

And the reason that happened is because there were  some protests and rallies that were held in Washington DC where some of the right wing rally goers were arrested including the leader of a, of, of the Proud Boys was arrested in Washington, DC.

And, it was interesting because it almost for, um, the people who were posting on Parler, it almost seemed like, uh, Like they were let down by the police. And they felt like there was some sort of tacit arrangement that had been violated by arresting right wing protestors. And so you saw a lot of posts that said things like, I stood out on the corner every night for you last summer. You know, during the Back the Blue protests. And now you went and arrested some of my, you know, my, my friends, my colleagues, my brothers, right?

And so the deal's off, you know, the gloves are off and now you know, we're gonna get you kind of a thing. And it was, it just a lot of posts with that kind of theme. And so not so surprising necessarily if you follow that traffic that where they really ended up becoming violent against police was in Washington DC.

Cait Macleod:

So could you give, I mean, you referenced a little bit earlier about how it sort of vacillates over time. Can you give a little bit of a history of police's, the police's approach to protests and the different models that have been used?

Edward Maguire:

We have a very decentralized policing system in the United States with 18,000 plus police departments, the vast majority of which are very small. And so when we talk about trends in policing in the United States it's, it's really not that the entire country is doing something. It's a tendency. It's a tendency among police departments  to, uh, engage in, in, in certain types of behavior.

What the social movement scholars argue is that, uh, In the 1960s police relied very heavily on, uh, what they referred to as an escalated force model. And the basic idea which is one we quite frankly, haven't completely gotten away from still 50 years later, is that  if police, you know, police are looking to disperse a crowd and they just keep sort of inching up the level of force, escalating the level of force, that at some point they'll touch on the level of force necessary to disperse the crowd.

And we now know from a lot of crowd psychology and crowd behavior research that that's actually flawed logic. In fact many, many crowd events, we see the exact opposite reaction as police begin to escalate the level of force instead of,  the crowd just saying, oh no, we're going home now, certain members of the crowd will do the exact opposite and say, oh, we're having a fight. Okay, let's fight. Oh, you wanna throw a tear gas canister at us? Okay, we're gonna throw one back at you. And so each side tends to escalate.

And so that escalated force model really was not consistent with how crowds actually think and behave. And so it didn't work particularly well and it fell out of favor after a lot of very violent incidents across the United States.

And so for,  probably at least two decades, the US  experimented with what they call the negotiated management model, which was a lot more, a lot more dialogue based. Instead of just, doing mass arrests and firing impact munitions and throwing chemical agents at the crowd, let's talk to the crowd. Let's have a conversation with its leaders and see if we can come to some sort of negotiated arrangement that both sides can live with, maybe an arrangement that neither side will be completely happy with, but that both sides can live with and that won't result in lots of arrests and use of force and lawsuits and so forth.

So we saw the negotiated management model for at least a couple of decades really take root in the United States and then what happened after that really starts to kind of split apart. But we started seeing a, a lot of variety in police response to protests after about 2000.

And certainly a return to more forceful methods as we saw in the Occupy protests, the Ferguson protests, and the George Floyd protests and many others. But those were the three big ones where police are sort of. Almost in many ways back to a kind of escalated force model.

And some scholars argue that what police are doing now is actually much more insidious than what was happening with the escalated force model. So a lot more, you know, putting undercover officers into protest movements a lot more use of intelligence collection of various types and so in some ways much more sort of surveillance based in addition to the use of force.

And  it's been kind of a, a, uh, horseshoe shaped response here in that it, you know, started with a lot of force, then the level of force used during protests was reduced for a couple of decades, and we're back to pretty overwhelmingly forceful responses again.

Cait Macleod:

What are the challenges that police face when dealing with a protest?

Edward Maguire:

Well, let's be very clear here that, you know, for police officers attending protests is an awful, awful assignment. It's just, and, and particularly protests where they are the object of the protest. Because I studied this topic both from the side of the protestors and from the side of the police, because I'm, I'm trying to understand it from a sort of a 360 degree perspective.

And so, You know, when you talk to police officers, the level of stress that they experienced during these events is awful.   We have to remember that during the George Floyd protests, the incident that ignited the protest happened in Minneapolis, but the protests were happening all over the country.

And like I say, we have 18,000 different police departments and like any kind of organization, they range from really wonderful, innovative, amazing, thoughtful, you know, organizations under thoughtful leadership, all the way to really terrible police departments that engage in a pattern, a practice of excessive force and biased types of behavior and so forth. And so, you know, the officer who's standing in front of you, if you're a protestor, may be the best officer in the whole world, right? Like maybe a, a wonderful human being who is thoughtful and kind and innovative and  restrained or judicious and his or her behavior. Those officers are getting yelled at and screamed at and spit on and things thrown at them as well. Right?

And so it's, it's very, very difficult work.  It's certainly not for everybody.  It's a type of work that requires a tremendous amount of maturity and emotional intelligence. And you know, a lot of police officers are not, are not really cut out to do this kind of work because they may have poor control over their emotions and may have an orientation toward using too much force just naturally and then the minute they see protestors in front of them, it's like, ah, okay, now I can do it. Right. So it's, it's, it's horribly difficult work.

And I'll share just a brief anecdote  about a woman I interviewed in Salt Lake City, Utah, police officer who was assigned to work the Occupy protests in her community. And she ended up having some dental problems. And when she went to see the dentist, the dentist told her it looked like she had been grinding her teeth really aggressively.

And so the dentist was asking her,  are you under stress lately? Like, are you experiencing any kind of stressful event in your life? And she said, yeah, I'm at these protests every day and these protestors are really pretty rough on me. And, And so what they figured out was when she was working at the protest, she was grinding her teeth so hard that she ended up cracking her teeth.  So I, I just think these are difficult, difficult events for police to work, and we need to acknowledge that.

Cait Macleod:

Do we know what the triggers are when police do use excessive force in protest contexts? Is it a lot to do with the culture of a particular police force? Is it the individual police people? Is it fear that builds up? The crowd is frightening them? And what kind of triggers them to do that?

Edward Maguire:

Well, what we're finding from, because there is a, a wave of lawsuits right now, federal civil rights lawsuits that have been filed against police departments, the ones that really had dramatic over responses to the George Floyd protests. And we're learning a lot from those lawsuits.

For instance, so there were agencies where the agency has a requirement that officers wear their body cameras and have the body cameras activated when they're involved in an encounter  with a citizen that could likely result in the use of force or an arrest or something like that. And there are agencies that simply just didn't require during the protests for their officers to have on their body cameras. So now you have, you, you've just created a culture where accountability is not really particularly present, right?

There are agencies that didn't require officers who used force during the protests to fill out use of force reports. Conventionally, in any use of force, you're going to fill out a use of force report documenting why you used force, what type of force you used, whether the party was injured and and so forth. But if you're an agency that told its officers, Hey, you don't have to fill out use of force reports. You don't have to turn on your body cameras. All of a sudden you've created a no accountability zone where officers feel completely free to be able to, to engage in these types of behaviors.

I mean certainly there are individual level triggers. There's no question about that. And often it has to do with officers who just have poor control over their emotions, or not particularly mature, thoughtful about how to handle these things. But if you're in an agency where, supervisors allow officers not to wear their body cameras or not to activate them, where supervisors are not asking for use of force reports, where supervisors are standing next to officers who are engaging in misbehavior and simply not supervising.

In one city in the United States, for instance, there was a video footage of an officer who had a pepper ball gun in one hand and a pepper spray fogger in the other hand, and was deploying both of them simultaneously while standing next to a sergeant.

Well, when you're doing things like that,  you are essentially creating a no supervision zone, right? And so these are the types of things that really went wrong. They tended to be more organizational than they were individual, if that makes sense.

Cait Macleod:

Yeah, that makes sense. And then. If we kind of cross the skirmish line from the police side over to the protestor side. What do we know about the psychology of crowds and how can we use that knowledge to keep protests safe?

Edward Maguire:

we've now had, coming up on about four and a half or five decades of really amazing research on the police response to crowds and on crowd psychology and behavior, the vast majority of it emanating from the UK where researchers are working with police on a regular basis to help hone these ideas.

What it shows is that  most of the people in a crowd tend to have moderate perspectives. But you have a handful of people who believe in what protestors refer to as a diversity of tactics. And so maybe more aggressive protest tactics like using violence or property damage or things like that.

When, uh, crowds perceive that some external entity, whether it's the police or it could be counter protestors, or it could be private security or whatever it may be, but when they perceive that an entity is, is behaving against them in sort of an unjust or inappropriate manner , instead of kind of maintaining that moderate perspective, tend to begin to align more with the radicals among them. And so that alignment right there where moderates begin to align with these more radical elements among protest crowds that's what we train police to try to avoid. In other words, that's the point at which they lose the crowd, right?

And so the idea is, in whatever way police behave with crowds or respond to crowds, the idea is to never make it about them. Now this gets more difficult when the protest is actually about them from the outset.

But in most protests it's not like that, right? Protesting against the economy or the government or  corporations or whatever it may be. And what we encourage police is that however you respond,  don't turn the focus of the crowd toward you. That's where we see a lot of violence.

And so, allow the moderates to stay moderate. Don't anger the entire crowd by taking this kind of unjust, indiscriminate action and allow them to stay focused on what they came here to be focused on and not turn it toward you.

So during the Occupy protests, what went wrong is the police over response in some cities. The Occupy movement had nothing to do with the police. In fact, the occupiers were trying to enlist the police as members of the movement and saying to the police, you're actually part of the 99% like us, right? And so what happened was when the police over responded in this very indiscriminate manner, um, toward the protestors, the protestors turned their focus toward the police. So now what started as a protest against corporations and governments is now a protest against police.

And that's what we're looking to avoid. Because once it became turned toward the police. Now the moderates and the crowds were sort of aligning with the radicals and saying, you know what? I don't ordinarily do stuff like this, but I do think it's okay to damage property or to resist in a violent  way against the police. And so it's that psychological shift that we're looking to avoid.

Cait Macleod:

What kind of preparation can police do in advance of a protest to minimize the likelihood of things escalating?

Edward Maguire:

Well,  You've got the, what can they do immediately before the event and what can they do long before the event. So long before the event they can train officers on how to handle these events in ways other than just using force or making mass arrests.

So if you look at the curricula of most major police departments in the United States, probably 95 to 99% of the curricula will involve the use of less lethal weapons, the use of crowd control formations, the use of crowd control movements, how to make mass arrests, how to put on your gas mask, on how to throw chemical munitions, and fire less lethal impact munition launchers, right?

And so the vast majority of it is the use of force. And then you'll see like a page of training, oh, and don't forget, we have a first amendment, right?

So certainly making the training much more balanced and incorporating the crowd psychology research very centrally into that training. And then as the event is coming, it's reaching out to the event organizers and communicating with them.

And, you know, not all of these events are gonna be people you want to communicate with. We had a Nazi rally here in Phoenix, probably about a year, year or more ago. And I can't even believe I'm saying this, but it actually, I mean, if you imagine what could go wrong in a Nazi rally, it actually turned out to be a fairly successful event from a violence prevention perspective because there was no violence.

There was awful racist kind of behavior going on and burning of the Israeli flag and lots of  hate speech and things like that that happened. So of course that was awful. But the police here in Phoenix reached out not only to the Nazi rally organizers, but also to the various communities that may be affected by having Nazis in town. So, you know, reached out to the Jewish community  and others to try to kind of just keep everybody calm and keep  things from getting out of control.

You know, I'm sure there's no police officer who's excited about having to call up the, the Nazis to say, Hey, I hear you're coming to town. Let's chat.  But that's what they did. And from a violence prevention perspective, it was a highly, highly successful, effort by the Phoenix Police Department to keep things calm and, and under terrible circumstances.

And so communicating with protestors ahead of time, we always say we want police communicating with protestors before the event, during the event and after the event. And to the extent that we can have really well-trained, mature, emotionally intelligent officers who are assigned duties like that, we can prevent violence using approaches like that.

And then in terms of during the protest itself, other than communication and what you mentioned before about trying not to become the, the object of a protest if you aren't already, what are the other strategies that police can use on the day to try and avoid escalation?

So police in the United States default to the use of skirmish lines, which are just lines of heavily armored officers usually carrying, in addition to  the lethal weapons that they always carry,  carrying less lethal weapons that shoot various types of projectiles that are less likely to kill the people they strike.

And so that's sort of the standard approach in the United States and in many other countries is to form a skirmish line. And what's interesting is these skirmish lines are often completely arbitrary. Like, like why are you forming a skirmish line in this particular intersection? What is it you're attempting to prevent  the protestors from getting to?

So my question that I always ask police commanders is, do you have something that you are seeking to protect? For instance, do you have a hotel full of visiting dignitaries from all over the world? Yes. You need a skirmish line. Do you have a part of town that you know contains some valuable infrastructure or something you're trying to keep protestors away from? Okay, make a skirmish line.

But most of the time when police form skirmish lines, there's not actually a strategic objective there. They're not trying to protect something, they just arbitrarily pick a spot and draw a line in the sand and say, you can't go past this line.

And what we know from protests is if you ever wanna find the fight at a protest, just find the skirmish line and that's the fight. That's where the fight's gonna happen, particularly if the protest is about police. So the, just knee-jerk reaction. Like, oh, there's a crowd. Let's make a skirmish line. That in and of itself is of dubious strategic value and can often result in a lot of violence. So just deploying in different ways than that is one thing that police can do.

And we see those skirmish lines overused dramatically but then, in a case like the Capitol insurrection, we actually needed a skirmish line, like it's the Capitol of the United States. We need to protect that. The skirmish line shouldn't be breached. So it's like we often use them when we don't need them, and then we don't use them when we do need them. And I think dialing that tactic in more appropriately I think can really help.

Cait Macleod:

Yeah, when you were talking about having some strategic spot that you don't want the protestors to go to, I was thinking the Capitol was probably a pretty good, good example.

Edward Maguire:


Cait Macleod:

What are the other changes that you'd recommend for, you know, changing the way that we deal with protests?

Edward Maguire:

I like to see officers not wearing riot gear until we start to see evidence of riot like conditions forming. And what that requires is you can't just make this up on the day of the event. It's a highly choreographed kind of thing.

So imagine you have officers in riot gear who are, you know, stashed away in a air conditioned bus or in a building nearby or something like that where they can deploy rapidly if needed. I like to see that type of deployment plan so that when protestors look around and see officers, they see officers in their regular uniforms not all geared up.

You know, in the minds of protestors, if they see officers in riot gear, in their mind the officers are looking for a fight. And so some of them are willing to oblige, okay, you wanna fight? Let's fight, right? And so unless you have a need for officers in riot gear immediately, I like to see those officers sort of staged off somewhere nearby.

And then hopefully the department will have trained  the sort of choreography of getting officers to switch out so that the officers in riot gear show up and the other officers leave and then they gear up.

And sometimes there are multiple levels of gear. So it can get  complicated like if people are throwing objects, then it makes sense from a human perspective, right, that we don't want objects landing on officers' heads. So maybe they wear helmets and carry their riot batons, but they're not in full riot gear yet. Right? So, you know, you could have officers who are staged in their regular soft uniforms, maybe they start to switch into what they call hats and bats. So they have their long riot baton and their, their helmet to protect their head. And then maybe if things continue to get worse, you rotate in the officers in riot gear.

So that's just one step that I think of that police can take. It needs to be trained, it needs to be choreographed, right? It can't just be expected to be done flawlessly on the day of the event.

The other thing is, there's a tendency for police , not to talk to anybody, to sort of be very wooden in their appearance. And it's really a bad idea, you know. I mean, you don't wanna get sucked into a conversation about politics or religion or anything sensitive, but I think anything the police can do to humanize themselves, to be able to communicate to people like, we're human beings just like you.  Can't wait to get home to,  my wife and children, or to my girlfriend or my boyfriend, or, you know, whatever. Like, anything you can do to kind of humanize yourself I think is really useful for for toning down the, the tensions.

Cait Macleod:

What about arrest? How useful is that as something in the police's toolkit? Because I think a lot of the time there's an element of martyrdom in being arrested at a protest, and quite often people are arrested and then it never comes to anything. They're just later released. So, I mean, how, how helpful is it to, to arrest people?

Edward Maguire:

So I am really opposed to mass arrests and not from a ethical or political perspective or anything like that but just from  an effectiveness perspective, I think mass arrests are a terrible idea. And in my guidebook on policing protests, I recommend against them whenever possible. I mean, I can see there may be circumstances where it's absolutely necessary, but those would be quite rare.

And so I believe very strongly in the use of targeted, very focused, very targeted arrests. And here in the United States, there's some terminology that gets used that automatically tells me that somebody doesn't really know what they're talking about when it comes to handling protests. So if I hear the word 'agitator' out of your mouth, I'm sorry. I'm gonna be judgmental and assume you don't know what you're talking about. And a lot of police use the word agitator.

So the idea which, stems from outdated theories of crowd psychology, is that if you have somebody in a crowd who is maybe encouraging violence or encouraging property damage or something like that, that somehow other people in the crowd are just going to be kind of magically carried away with this message, and it's gonna be contagious and it's gonna spread throughout the crowd.

And so a lot of the arrest policies are built around arresting agitators, and it's an absolutely terrible idea that's virtually guaranteed to backfire.  We also have some police departments in the United States including very large police departments , and influential police departments  that regardless of your behavior, if you are thought to be the organizer of a protest, you're getting arrested.

If you're on the bullhorn, you're getting arrested. You know, if you're wearing all black, you're getting arrested. So there are all these theories in police departments that suggest we need to arrest organizers and agitators and speakers, and people who are wearing a certain type of clothing. These are ridiculous and outdated concepts.

My idea for making arrests at protests is very simple. Are you engaging in violent behavior? Yes, you should be arrested. Are you engaging in property damage, like significant property damage? I'm not talking about, you know, I've seen officers threaten arrest for writing on sidewalk with sidewalk chalk. This is the writing on sidewalks that's going to be erased  the next time we have rain, right? And so I'm not talking about that kind of property damage, but actual property damage.  They should be arrested. Like that's fine. Arrest the violent people, arrest the people who are engaging in property damage and let the rest of the people continue doing what they're doing.

And so just generally speaking, I advocate for a very focused, very targeted use of both arrest and the use of force as opposed to sort of much more indiscriminate approaches like shooting chemical agents at an entire crowd, or  spraying a crowd indiscriminately with less lethal munitions or making mass arrests. All you're doing is angering the crowd and virtually guaranteeing a rebellious response. That will involve more property damage and more violence.

I was talking with a young man who went to a protest in an American city during the George Floyd protests and he said, you know, he said the cops just started shooting at us. And he said, what happened was when they started shooting at us, he said there were no broken windows. There were no dumpster fires, there was, you know, no graffiti or anything there, but when the cops started shooting at us, people went crazy and they just started lighting fires. And so in other words, the lighting fires and the property damage and all of the broken windows came as a result of what the police had done, not prior to what the police had done. And we often get that causal order a little mixed up.

Cait Macleod:

Interesting. So we've been talking about what the police can do and how they can be better prepared and better trained. What about the laws that govern what the police can do and also what protesters can do? Are those fit for purpose? How much of that is contributing to, to violence happening at protests?

Edward Maguire:

I think in the United States, for the most part, the laws are, are perfectly capable of handling these types of events.  We already have laws in place for dealing with property damage. We already have laws in place for dealing with violence.  And so it's really not necessary in most places that I'm familiar with, to pass new laws, to be able to allow, some better handling of these events.

Often the laws that get passed for handling these events are unconstitutional. They violate civil liberties and they end up resulting in large lawsuits that will often be successful lawsuits, whether they come to a verdict or whether they're settlements.

So it seems to me that a lot of time gets wasted on trying to pass more restrictive laws that that are just not necessary if we just build enforcement strategies around the laws we already have.

Cait Macleod:

So is a lot of that stuff with excessive force and so on is that actually a legal behavior on the police's part?

Edward Maguire:

Yes. It, it is, but it's often not prosecuted. There are some notable instances where it is, but it's virtually never prosecuted. And so in the United States, it gets handled with civil lawsuits, federal civil rights lawsuits for the most part, that result in costly settlements for communities and their insurers.

But what's interesting is that there's really not a cost for police. You sometimes see police chiefs fired or maybe somebody who handled the protest gets demoted or reassigned or something like that. But there really is not necessarily a huge cost for police because often these lawsuits take a decade to process.

And even when the judgment is, let's say a judgment is made against the city, it doesn't affect the police budget. And so, it's the citizens that end up paying the cost of these kinds of things. There's often not much of a cost for police.

We do see lots of police chiefs losing their jobs over these when protests go bad, that tends to be 1 1, 1 of the ways in which communities deal with it is they fire their police chiefs or their police chiefs resign. But really, you know, it's interesting that the resolution of these cases often has very little to do with the police themselves.

Cait Macleod:

Well that's maybe why we have this kind of cyclical trained in protest policing rather than kind of sustained change. What about the permitting process and the whole idea of getting permission from the authorities for a protest before it happens, or at least informing them of what's going to happen. How helpful is that for police and is that something that needs to be changed at all the the way that process works?

Edward Maguire:

Typically, municipalities will have some sort of local ordinance requiring  a permit. And many organizations that engage in protests never bother with that permit. They don't ask for permission. They just hold the event. And the same is true for many other types of events like spontaneous sports celebrations. Nobody's going to get a permit after a Super Bowl victory or something like that for people to get together and party in a park or something, right?

And so, yes, there is a permitting process.  It's useful for police because then at least police know an event is coming and they can prepare for it as opposed to being surprised by it.  But a lot of groups never bother with the permitting process.  And some cities don't even have a permitting process.

Cait Macleod:

Okay. And kind of bearing in mind that a lot of these events are not permitted. Do you think there's a problem with police being kind of overzealous in asking people to disperse? Because it seems like when you ask people to disperse and they don't want to, a lot of times that's when things start to escalate. So should police be, you know, thinking differently in terms of when and why they decided to ask people to disperse?

Edward Maguire:

Yeah. I mean, I think, I think there are many instances in which police prematurely issue an order to disperse and that ends up becoming part of lawsuits, that that's a, a violation of people's first amendment rights to assemble, and  to speak freely and so forth.  So, yeah, we do see instances where the order to disperse seems to be premature.

And it's really difficult because, let's say you've got a crowd of 500 people and nobody's misbehaving, right? Everybody's well-behaved on the protest side of things. This is easy for police to handle. Okay, well, how about you've got 499 people who are behaving well and one guy's throwing rocks. Okay, let's arrest the guy throwing rocks and call it a day. Right. Okay. Well what about, you know, five people throwing rocks? Or 10 or 20 or 30.

When does it become riotous? Right, because the idea is we issue the order to disperse when things become riotous, and it's not like there's a clear line, you know? You've got one guy spray painting a building. You've got three guys throwing, uh, empty plastic water bottles at the cops.

At what point is it a riot?  You know, It really isn't a bright line rule for when to issue in order to disperse. It's when the commander on scene feels like it's becoming a riot. Right. Anytime you have  such ambiguous decision criteria, you're going to end up with some bad decisions, right? Sometimes they're gonna wait too long, sometimes they're gonna pull the trigger too early and issue an order to disperse when it's really not warranted. And it's, that's a really difficult decision.

Cait Macleod:

So just one last question. I mean, we've had this Defund the Police movement, and I imagine that what's kind of consistent with the Defund movement would be an argument that, you know, we shouldn't have any police at protests. We should have some other group of people that are  guardians or marshals for protests, people who don't have guns, people who are not associated with use of force at all.

What do you think about that idea? Is that something that could work?

Edward Maguire:

Well, I would challenge them to imagine how things would've gone in Charlottesville with no police at all. Right?  So there are these events in which  we need somebody who has the capacity to stop violent behavior.

Hopefully early on, right. Hopefully before it, gains a foothold. But I do think there is a lot of merit to the idea of trying to create within crowds a mechanism of self-policing through the idea of marshals or some mechanism that helps crowds control themselves without the need for external control would be amazing.

And often we see that come from when you have a protest community that has really trusting relationships built over a long period of time with police.  Those trusting relationships can produce that kind of instinct for self-policing within crowds.

I give an example in my guidebook of police in Salt Lake City who when they had a protest, I don't even remember what this protest was about but some folks came from out of town to join the protests, and they were behaving  in a very provocative, sort of pre-violent kind of way, like they were going to be violent, and the protest community themselves ran those, those folks away. We don't want you here. Get outta here. You're not welcome. That's not how we do things here.

And so whatever mechanism, police or other agencies could put in place to build that kind of self-policing mechanism within crowds would be fantastic.

Cait Macleod:

Ed's guidebook, which he co-wrote with Megan Oakley, is not an academic piece of work. It's actually been distributed to police officers in the US and also in other English speaking countries around the world. It was published by the Harry Frank Guggenheim foundation which is a New York based foundation dedicated to the prevention of violence of all kinds. 

Edward Maguire:

The idea was, these concepts and ideas need to get out there into the world so they can affect practice. And I don't want having to buy the book to get in the way of that. So it is freely available. 

Cait Macleod:

The more I talk about policing on this podcast, the more I think it's a strange job. Sometimes it seems that doing it well is about doing less of the things we think of as policing. Less uniform. Less weaponry. Less looking, sounding and acting like the police. Like a good doctor, a good police department can almost measure its success by how infrequently its services are required. 

I've done interviews on Defund the Police, prisons, sentencing, and policing drug use. And the theme that runs throughout is that what we need more than anything in the justice system is compassion, emotionally intelligent people, and a healthy dose of  restraint. 

Wood for the Trees is hosted and produced by me, Cait Macleod. A big, thank you to my guest, Edward Maguire. You can access the free PDF of his guidebook on the Harry Frank Guggenheim foundation website and on my website cantseethewood.com. You can support the show by subscribing on your favorite podcast app. 

Thanks for listening.