Protect the police or the First Amendment?

As the murder trial of former Minneapolis police officer Derek Chauvin enters its third week, all eyes are not just on the facts surrounding the death of George Floyd, but also on the state of policing in America. 

Unconventionally, the prosecution has called multiple current or former members of the Minneapolis police force to testify against Chauvin, painting a stark contrast between ethical policing and the horrors revealed through multiple videos taken on May 25, 2020. Meanwhile, a string of separate narratives has unfolded during the trial, with numerous bystander witnesses describing the helplessness they felt as they watched Floyd expire while pleading with Chauvin and the other officers to ease up and give him basic medical assistance. It’s impossible to watch any snippet of the trial without concluding that something went seriously wrong that day — and that it wasn’t a lack of sufficient police power.

Yet that’s precisely what the Ohio legislature appears to be aiming at in the wake of Black Lives Matter protests. One House bill would, among other things, make it a crime to “[i]nterfere with or obstruct a law enforcement officer in a manner that . . . Inhibits or restricts the law enforcement officer’s control of a subject or detainee,” if done “with reckless disregard as to whether the action diverts or obstructs the law enforcement officer’s attention.” In theory, then, peacefully shouting at a police officer to stop what appears to be unreasonable force against someone like Floyd could become a crime in Ohio.

Another provision would empower police officers to bring civil actions for money damages against private persons for injuries the officers allegedly suffered during the performance of official duties in connection with “offenses against the public peace”— which include rioting, vandalism, disorderly conduct and failure to disburse. Officers could also sue any “organization that provides material support or resources with purpose that the material support or resources will be used . . .  to plan, prepare, carry out, or aid in conduct” that’s banned under the law. The Ohio Senate has introduced similar bills. The notion of empowering police officers to sue bystanders is especially ironic given the raging debate over the perceived overuse of qualified immunity as a defense to private actions against police officers for alleged violations of individual constitutional rights. 

Over the weekend, the proposals prompted a slew of gatherings across the state, with organizers calling on Ohioans to “Protest While You Can” against “the anti-protest bills in Ohio.” Activists argue that the measures run afoul of the First Amendment, while supporters claim they are needed in order to keep future protests under control. To be sure, the First Amendment includes a right to “assemble peaceably,” so government officials can constitutionally take steps to restrain the ability to protest in the interest of public safety. Protestors who participate in events that wind up blocking traffic, violating a curfew or ignoring a police order to disburse can validly face arrest; the First Amendment won’t protect them.

Given the wider stakes playing out on national television in connection with the Chauvin trial, however, the Ohio legislatures’ maneuvers are nothing short of bizarre. America is mired in a debate about what to do about over-policing — not any lack of available police force tactics. Numerous figures across the political spectrum, including President Joe Biden and former Deputy Attorney General Rod Rosenstein, have urged a reconfiguration of police departments to incorporate personnel with expertise in social sciences such as mental health care, youth services and housing — in addition to law enforcement. Although Biden is also calling for an uptick in police hiring, many in Congress have consistently balked at additional federal money for state and local governments, including dollars that would help fund police forces.

Ohio lawmakers’ clumsy response to the delicate balancing of free speech rights and the need to retain order in the public sphere also hits the wrong note in light of the Jan. 6 insurrection at the U.S. Capitol, which stands as a horrific tale of an overwhelmed and vastly outnumbered Capitol police force, whose plan for containment was a catastrophic failure. Although hundreds of individuals who participated in the riots are now under criminal investigation, arrest or indictment, the bare existence of even more criminal laws would not have prevented what happened on Jan. 6. A more prepared, equipped and staffed police presence might have. It’s still up to Congress to empanel a 9/11-style commission to get to the bottom of what went wrong on that day. 

The story of law enforcement in America has always come down to two competing interests: public safety and the safety of officers on one hand, and the constitutional rights of individual citizens on the other. Tamping down on the latter indiscriminately is hardly the way out of the thorny problem of contemporary policing. 

Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books “How to Read the Constitution — and Why,” and “What You Need to Know About Voting — and Why.” Follow her on Twitter and Instagram @kimwehle.