Democracy is messy by design

November 3, 2011 11:33 AM

Does the U.S., by treaty or other law follow the OSCE/ODIHR – Venice Commission Guidelines On Freedom Of Peaceful Assembly in regards to applying the First Amendment right within the Constitution?

I was having a discussion with my wife (who is a history teacher who covers Constitutional rights in 8th grade) last night based on the police action taken in Oakland over the "Occupy" encampments.

Basically - based on the particular actions taken by the police, and the manner in which they took them (busing in police, trying to herd people back to the park with tuncheons and tear gas) in light of reasons (blocking the street / causing potential hazard) - where is the legal line?

It seems that Freedom of Speach and Religion have always been well covered topics, and as a result they have gotten fairly clear delineations on "Yes" versus "No" in where the right can be applied. But looking at some sources on assembly, there still seems to be significant legal grey area.

So, probably more of a two part question - does the US belong to a treaty defining assembly as in the OSCE/ODIHR document for definition of the First Amendment right?

And second, what options do "Occupy" encampments have in regards to fighting enforcement actions that are on a scale of force such like Oakland has decided to take? Is that level of force actually legal, in a Constitutional sense?

posted by rich to law & government (7 answers total)

Not as far as I know.* The document you link to is actually something of an internal EU document. So rather than a treaty as such, it's more of a regulation handed down by an international body created by treaty and binding upon member states.

Here's the thing though: in the US, constitutional rights absolutely cannot be modified by treaty. The use of treaties even in attempting to define the boundaries of constitutional rights is actually pretty controversial, but even the most committed internationalists tend to stop short of suggesting that treaties can be anything more than instructive to US courts in interpreting the Constitution.

To the extent that the OSCE and ODIHR can issue guidelines like that one and have them be at all binding is because the member states have surrendered part of their sovereignty to the Council of Europe and it's Venice Commission advisory body. The US has pretty much never surrendered its sovereignty in that way. The Constitution doesn't really let it, as the political branches lack the authority to enter into agreements which modify the Constitution or constitutional rights in the slightest. The US is rather unique in that respect, as many other democratic governments either don't have written constitutions at all (e.g. the UK) or their constitutions permit this sort of thing.

So no, the US doesn't really belong to any organizations which create standards like this one, and it might not even matter if it did.

As far as the legality of the "Occupy" encampments... the Constitution provides the right to peaceably assemble. Shutting down the Port of Oakland and lighting random bonfires doesn't really seem to fall into that category, and the fact that the police seem to have started it doesn't chance the fact that what's going down there today is not likely protected by anything. Even resisting the police when they are using unconstitutional levels of force is pretty touchy. The public doesn't really get to decide whether a given use of sovereign force is appropriate on the fly.

*The US is an "official observer" at the Council of Europe and the Venice Commission, but it is not a member of either.
posted by valkyryn at 11:52 AM on November 3, 2011 [2 favorites]

Here is a list of Supreme Court rulings on the Right of Assembly, with a summary of these and other cases here. As with most things Constitutional, the right to assembly is open to interpretation and that interpretation changes over time. Even interpretations of freedom of speech remain controversial as witnessed by the recent ruling on corporate campaign donations as speech.

To answer your second question, Oakland "Occupy" protesters have the right to sue the City of Oakland and the Oakland Police Department in federal court for violating their right to assembly and likely in state court for use of excessive force. The protesters could also petition the US Department of Justice (and probably the California Department of Justice) to open a civil rights investigation of the incident. The results of either a court case or a DoJ investigation would determine whether the use of force by the Oakland Police Department was legal.
posted by chrisulonic at 12:27 PM on November 3, 2011 [1 favorite]

Yes (bangs self upside the head) I forgot that anything in the US Constitution cannot be overridden or modified by treaty (many times causing treaties to not be entered into because of clauses to that effect that would have implied such a thing). Big duh to me.

Though, given the lack of guidance in the area of (peaceable) assembly, you would think it could be used as a guiding document for groups looking to declare their right to assemble.

As for the Oakland instance - the course of events seem to have been (as reported by various AP/reuters, etc); (mostly) peaceful protest day, loitering in the streets after midnight. Police come in as well prepared force, with expectation of resistance, declare the loitering an illegal assembly, order people back to their tents, begin to fire tear gas/arrest people, ring-fence those who went to the middle of the park as instructed, and proceed to tear gas again.

From the uslegal.com site: "if a demonstration breaches the peace or involves other criminal activity, law enforcement may ordinarily end the demonstration in a reasonable manner."

Are the police empowered to decide what is a legal or illegal assembly? Especially given the chain of events, the police actions did not seem reasonable, or within their remit unless directed by other officials in the government.

I, of course, think the destruction of property and fire setting by protestors only hurt what the others are trying to do. And does open up the possibility for the government to end the assemblies, legally.
posted by rich at 12:27 PM on November 3, 2011

Are the police empowered to decide what is a legal or illegal assembly?

That's actually a really nuanced question. Police are empowered to enforce the law, which implies some sort of empowerment to decide what is legal or illegal activity. Police actions are however subject to judicial review, which is why the court system and not the police determines guilt. In the case of police actions which result in some physical or legal injury, other than arrest, the injured party has the right to redress through the judicial system. In that case, the police are required to defend their actions and decisions under threat of civil and/or criminal penalty. In other words, the police are answerable to the courts for actions resulting from their decisions about what is illegal.
posted by chrisulonic at 12:47 PM on November 3, 2011 [1 favorite]

There's a decent amount of case law dealing with the question of when the police get to intervene. Once you have people "loitering," not following instructions to disperse, etc., you get a lot closer to "breaches the peace or involves other criminal activity" than you were when people were just marching.

Blocking access to private property is another area of concern - there's a few abortion protest cases that come to mind on that one, and I think the stuff coming out of the Westboro actions at cemeteries (can a municipality order people to stay X feet away from a funeral?) may be instructive as well. The FACE act can give you a good sense of where Congress was drawing the line between "peaceable assembly" and "this is really not OK and thus should be prosecutable" in 1994.

(I don't know enough about what happened in Oakland to have an informed opinion on the specific question of "were the police in the wrong.")
posted by SMPA at 12:48 PM on November 3, 2011 [1 favorite]

what options do "Occupy" encampments have in regards to fighting enforcement actions

It is important to remember that any options Occupy has are realistically going to be limited to after-the-fact court actions. Citizens can't generally arm themselves and resist the police with deadly force, no matter how unjust and potentially illegal the police tactics are.
posted by nomisxid at 1:06 PM on November 3, 2011

Though, given the lack of guidance in the area of (peaceable) assembly, you would think it could be used as a guiding document for groups looking to declare their right to assemble.

Again, the use of foreign documents as guidance in interpreting the Constitution is highly controversial. The left wing of the Supreme Court has done this on occasion, but this is usually either in a dissenting opinion or likely to provoke a withering dissent. Check the dissent in Roper v. Simmons, 543 U.S. 551 (2005). Scalia really launches into a criticism of the use of international law in section III. It's pretty spectacular, classic Scalia.
posted by valkyryn at 5:05 AM on November 4, 2011 [1 favorite]