Protests & pain-ray guns — the future?

Friday, September 24, 2010

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It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.
Justice Joseph P. Bradley (1886)

Freedom depends on the conditions of freedom. The latter make the former possible, and sometimes impossible, too. Put another way, if the price of freedom is too high, people will often forsake it.

It is precisely that consequence that the “chilling effects” doctrine was designed to prevent. That doctrine, as Justice William Brennan explained in Dombrowski v. Pfister (1965), aims to prevent government actions that “inhibit the full exercise of First Amendment freedoms.” By that measure, how police respond to political protests is something that should concern us all. This is especially so when police might adopt practices eschewed for use against hostile crowds in foreign lands. More about that in a moment.

Hoses, chemical projectiles, caged ‘free-speech zones’
The images are too powerful to forget: firemen in Birmingham, Ala., turning their high-powered water hoses on peaceful civil rights protesters in mid-July 1963. This Bull Connor (the police commissioner) moment was captured in stark black-and-white photos by Bill Hudson. They are reminders of what can go terribly wrong when police practices, ostensibly in the name of public safety, are not restrained, both as a matter of law and as a matter of public policy. Thankfully, the protest hoses have been retired, though some of the dangers of that general kind of public-safety rationale linger on.

Sept. 1, 2008: Police in St. Paul, Minn., fired chemical agents and projectiles into a large crowd of protesters outside the Republican National Convention. This past May, the Center for Constitutional Rights filed a lawsuit in federal court challenging the policies and conduct of federal and local law enforcement officials involved in the melee. Journalist and columnist Amy Goodman along with other media plaintiffs allege, among other things, that police used “unreasonable, unnecessary, and excessive force; and [thereby interfered] with their [constitutional] rights as members of the press.” One need not await the final outcome in that case to be sensitive to the need for enlightened policies that do not instantly sacrifice liberty at the altar of all claims of safety.

And then there are the Orwellian ‘free-speech zones,’ as they are called. For example, if you were in Boston on July 28, 2004, you would have seen a chain-link fence around “the public demonstration zone” outside the Democratic National Convention. A similar “official demonstration zone” was used during the August 2008 Democratic National Convention in Denver. Not surprisingly, the 47,000-square-foot fenced “free-speech” area went unused when the convention began. The chill had its desired effect — it squelched a considerable amount of protest.

The concern here is a modest one: Claims of public safety cannot be a trump card. They must be evaluated carefully, in recognition of the corresponding need for a robust measure of lawful freedom of speech. Of course, there will inevitably be situations where dangerous and lawless behavior must be stopped, and stopped by authorized means that would otherwise be deemed unacceptable. But that must be the exception, the last line of action, not the first, which brings me to pain-ray guns.

Protests & pain-ray guns
Last month Rachel Maddow aired a segment on a device known as “the active denial system,” aka “pain-ray guns.” The Raytheon-manufactured pain weapon, which momentarily puts one in severe agony, was originally purchased by the Department of Defense for crowd control in Afghanistan. On reflection, however, the department concluded that it might appear inhumane to blast Afghans with an invisible and intense beam of heat. So the weaponry was returned to the United States … where it could be used on Americans instead. In other words, what seemed inhumane for use abroad might be deemed acceptable here.

The National Institute of Justice, which is the research arm of the Justice Department, has arranged with the Los Angeles County Sheriff’s Department to conduct an experimental trial of a scaled-down version of the pain-ray gun at the Pitchess Detention Center. The 7½-foot-tall heat-ray weapon — tagged by one former sheriff official as the “Holy Grail of Crowd Control” — will be tested on unruly inmates. (See story here.)

Question: If the pain-ray gun — the same basic weapon the DOD spent $40 million to produce and then decided not to use — proves popular with the L.A. County Sheriff’s Department, how long will it be before that department or others in the U.S. will elect to use the weapon to control political protesters — say, at the next Democratic and Republican national conventions? Will this weapon that transmits an intense beam of heat at the speed of light and over a distance of 700 yards become the tactic of choice for use against unpopular and boisterous demonstrators?

Two years ago, in her book Give Me Liberty: A Handbook for American Revolutionaries (2008), writer and feminist Naomi Wolf predicted just such a scenario. She wrote: “in development by the Pentagon is a new weapon that can effectively microwave, and thus bloodlessly incapacitate, American citizens who are demonstrating. In practice trials,” Wolf added, “this new weapon was used against subjects dressed as American antiwar protestors.” The weapon was Raytheon’s pain-ray device.

What to do?
If it is one day employed against political protesters, the pain-ray gun will become another tactic in a long list of schemes — from caged “free-speech zones” to costly fee permits — designed (either intentionally or negligently) to squelch effective and meaningful exercise of First Amendment rights.

This continued diminishment of our freedoms should not go unchallenged. At a minimum, the public needs to be fully and regularly informed about any and all plans to use pain-ray guns against protesters. We need light; attempts to adopt such policies cannot occur in the dark. That means there must be written policies and these policies should be public documents. Additionally, there should be a strong presumption against the use of such weapons except perhaps in clearly defined circumstances in which the need is immediate and grave. Such measures could be statutorily created or, where otherwise duly authorized by law, could be created by police policies.

Fortunately, the days of water hoses are past. But now we need to safeguard the right of all Americans to protest peacefully in public without fear of being jolted by a beam of hellish heat.

Ronald Collins is the Harold S. Shefelman Scholar at the University of Washington Law School and a fellow at the First Amendment Center. His latest book is The Fundamental Holmes: A Free Speech Chronicle and Reader (Cambridge University Press, 2010).

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