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How One Might Defend Law Enforcement in Ferguson, Missouri

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By William Peacock, Esq. on August 14, 2014 3:55 PM

My home state is burning and it is a disturbing sight to behold. Protestors, mad about the death of an unarmed teenager, are tearing down their own neighborhood. Police officers, defending one of their own, are hiding the officer's identify and responding in a militaristic fashion against unarmed citizens and reporters.

Let's be very clear here, we're not taking a side, but with so many videos and accounts of seemingly unconstitutional acts by local law enforcement, lawyers may be wondering along with us: how would one defend some of these violations?

Suppressing the Press

According to USA Today, reporters Wesley Lowery of The Washington Post and Ryan Reilly of The Huffington Post said that officers told them to stop recording the riots, then took them into custody. They were arrested, according to the officers, because they were trespassing in a McDonald's.

That raises what seems like a plausible defense: First Amendment rights are subject to reasonable time, place, and manner restrictions, and if the officers were acting lawfully in closing the McDonald's, and if the reporters refused to leave the premises for a more lawful and public forum, such as the sidewalk or streets, wouldn't the arrests be justified in the name of enforcing trespassing laws and to promote public safety?

Of course, the streets weren't exactly safe for reporters:


The defense there? Maybe bad aim?

Citizen (Politician) Journalists Too

It wasn't just traditional press that was silenced by law enforcement. Antonio French, a St. Louis alderman who has been posting Vine videos and tweeting about the protests, was arrested and released as well, reports USA Today.

If one were representing the police here, they'd be wise to point out that the Eighth Circuit has yet to explicitly rule on whether there is a right to record officers' actions. Though other circuits have mostly ruled in favor of such a right, the decision are recent and the right is arguably not "clearly established." The officers' halting of the alderman's recording could then be covered by qualified immunity, even if the entire arrest seems like a blatant violation of protest and press rights.

Excessive Force

One can only imagine the number of excessive force claims that are going to be filed after this. In a setting eerily reminiscent of a warzone, police officers are detaining members of the press, aiming guns at unarmed protestors, and firing tear gas and rubber bullets into crowds.

Sen. Claire McCaskill (D-Mo.) said that the "police response needs to be demilitarized," and democratic Gov. Jay Nixon seemingly agrees -- he announced earlier today that an "operational shift" was in the works and promised that "you will all see a different tone" in the law enforcement response to the now five-day-old protests.

While you couldn't pay us enough to address the shooting of 18-year-old Michael Brown, in large part because the police department has refused to release any information and the facts are still in dispute, the protestors' claims would likely be met with an argument of self-defense. According to WFMY News, despite their riot gear and heavy armaments, two officers have been injured so far, with one reportedly suffering from a broken ankle caused by a brick.

Police are entitled to use force to defend themselves and to suppress riots, and with buildings burning and officers suffering injuries, someone defending them might try the old wink, nod, "put yourself in their shoes" argument -- just not explicitly.

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