Armed protesters in America create stress test for police

Stone Mountain, Ga.

On a steamy Georgia summer day, the militiamen came. They came with long rifles around their shoulders and handguns stashed in the waist bands of athletic shorts.

After Stone Mountain Park denied a permit for an armed protest by an Alabama militia on Aug. 15, “that meant that everything was going to be in our yard, on our side of the mountain,” says Jasmine Little, a Stone Mountain city councilor.

Indeed, the armed group of white Alabamians proceeded to the Stone Mountain village square, where they were met by a larger group of counter-protesters, some of whom were also armed.

Residents were urged to stay out of the area, given the uncertainty of what might happen with all that weaponry around. Meanwhile – in the summer of 2020, with protests breaking out all across the nation – police decided to stay back.

When shouting and swearing escalated into brawls, police in riot gear finally moved in to break it up. Protesters had some bumps and bruises, but no officers were hurt and property was not destroyed. As a result, no one was arrested. The outcome was seen as a victory by Stone Mountain Police Chief Chancey Troutman, who declared, “All sides had their say.”

Clashes like this one at Stone Mountain – the founding site of the Ku Klux Klan, which features a massive bas relief of Confederate icons – have become increasingly common in the U.S. as armed bands of civilians have roamed sometimes far from home to engage protesters, or protest themselves.

But what happens when First Amendment free speech rights are mixed together with Second Amendment gun rights guarantees in the same space?

If nothing else this potentially combustible combination poses unprecedented difficulty for law enforcement, even in states such as Georgia where the law explicitly prohibits public gathering of unauthorized “military bodies.”

When everyone’s armed, what’s a cop to do? In emotional and fluid situations, officers have to not only recognize rights, but figure out protest and counter-protest alliances and conflicts as unidentified people – many dressed in paramilitary garb – mill about carrying military-style rifles.

“You see these kinds of [armed conflicts] happen on the news maybe in a different country or even a different state, and you’re just, like, ‘Wow, that’s crazy, I can’t believe it,’” says a Virginia police officer, who asked that his name not be used because he had not been authorized to speak to the press. “Then you’re put smack dab in the middle of it and you’re, like, ‘Wow, this is real.’”

At the same time, police, like everyone else, have biases – both implicit and explicit – that affect their decisions. Researchers say these can partly determine who is singled out for aggressive enforcement, who is given the benefit of the doubt, and who might even be welcomed as a partner in a tense situation.

Meanwhile Black Lives Matter protests have sparked a national conversation on how, or whether, to reform policing in America, and the country is plummeting toward a presidential election where many on both sides feel democracy itself is on the ballot. Amid this tumult existing laws and policing norms about the clash of guns and protest slogans can feel inadequate or even unenforceable.

 “It’s a basic question of law enforcement: What is the law and what are the facts on the ground?” says Saul Cornell, author of “‘A Well Regulated Militia’: The Founding Fathers and the Origins of Gun Control.” “How are [police] supposed to enforce the law when there are people walking around with AR-15s and Kalashnikovs? We’re in this post-modern moment where the performances and fictions that we create seem to be more relevant than the laws we write.”

Rise of armed protests

Primarily white men armed with rifles began to appear at protests in 2016. The events became far more commonplace this year amid a painful pandemic and President Trump urging Americans to “liberate” their states from lockdowns. In Michigan this spring, stunned lawmakers watched as state police allowed armed groups into the Capitol, where some yelled down from the balcony. One lawmaker donned a flak jacket.

Black militias have also appeared in some cities. One such group marched in protest at Stone Mountain on July 4.

Though cooler heads have mostly prevailed, a few clashes have become violent. To some, the outcome of these incidents indicates there is a double standard in how police treat different groups of Americans.

Protesters exchange words as various militia groups stage rallies at the Confederate memorial at Stone Mountain, Georgia, August 15, 2020.

For instance, police in Kenosha, Wisconsin, gave armed white teenager Kyle Rittenhouse a water bottle and chatted amiably with him before he allegedly killed two people and injured a third during a night of protests. Days later Kenosha police arrested at gunpoint at a gas station a crew of Seattle cooks, known as the Riot Kitchen, who said they traveled to the city to feed protesters. Officers believed the cooks’ jerry cans might be bombs.

Earlier this month, police in Olympia, Washington, shot and killed a left-wing extremist, Michael Forest Reinoehl. Mr. Reinoehl was wanted by Oregon authorities on suspicion of targeting and killing a right-wing Patriot Prayer counter-protester in Portland.

Meanwhile, some states have enforced inconsistently laws intended to prohibit armed protests.

Like Georgia, North Carolina has a plainly written law that prohibits armed protest. Police in Greensboro, North Carolina, applied it this summer, arresting six armed Black protesters for violating it in June. Meanwhile, three armed white men, including one with a history of training with white supremacists, appeared at the same protests yet were not taken into custody, according to local media reports.

Those paradoxes suggest that police in some locales are, in fact, navigating difficult decisions about who can and can’t act with impunity in a protest zone – and that race and a long rifle on a shoulder can play into that decision.

Indeed, some critics believe that police and armed white vigilantes are working together to bolster a social order dominated by whites. Former North Carolina lawyer Lewis Pitts calls it “political policing.”

“Historical parallels can be seen even in federal counterintelligence programs during the 1960s, when it wasn’t just the local country bumpkin sheriff but the FBI saying about the Klan that they’re just good old boys and, ‘Sure,  we’ve got to hold them to some account,’ but there wasn’t the same feeling of the threat,” says Mr. Pitts. “But now we don’t see the equal protection of law. It becomes an ideological misuse of law.”

Uncharted legal territory

To be sure, officers are navigating a maze of state, local, and federal laws, and ordinances as they try to keep the peace.

And in some ways, they are in uncharted legal territory. The interaction of free speech with legally carried weapons has not really been litigated by the Supreme Court. The landmark 2008 high court ruling in District of Columbia v. Heller affirmed an individual right to bear arms. But the decision touched on, not armed protesters, but whether Americans should be able, as Justice Anthony Kennedy mused, to fight off a grizzly bear.

Many states ban armed public gatherings. But 31 states now also allow the open carrying of a handgun without any special license or permit, according to the Giffords Law Center to Prevent Gun Violence. Concealed carry of firearms, once rare, is now commonplace – 15 states allow concealed carry of weapons without permits. The evolution of self-defense laws has raised difficult questions about who can claim them, when, and why? Who gets aggressively policed and who gets a pass?

“We’re in sort of a real-time development of the Second Amendment law,” says Tim Zick, a professor of government and citizenship at William & Mary School of Law. “And we already have a preexisting established First Amendment law and doctrine. … People are trying to figure out, are they compatible? … Does one fundamentally undermine the other?”

Armed right-wing protesters in support of President Donald Trump stand in front of the Oregon State Capitol in Salem, Ore., Monday, Sept. 7, 2020. Hundreds of people gathered on Labor Day in a small town south of Portland for a pro-President Donald Trump vehicle rally, just over a week after member of a far-right group was fatally shot after a Trump caravan went through Oregon’s largest city. Later, pro-Trump supporters and counter-protesters clashed at Oregon’s Capitol.

For police officers like the one in Virginia, the answer is elusive.

“When you watch videos, it definitely seems that there is a double standard,” he says. “You can’t deny it.”

He points to recent incidents in Minnesota and Wisconsin as evidence of that.

“It’s really disappointing we can’t get everything to an equal level of treatment,” says the officer, who carries stickers in his cruiser to hand out to kids. “It makes every other police officer in the country look terrible.”

At the same time, he says, policing is such a complicated job that each incident can be viewed in many different ways. He policed a large armed protest this year, but wasn’t concerned because it was permitted and peaceful. More raucous protests at night, where laws are being broken, changes the dynamics and response, he says.

Ordinances against gun carry in protest are difficult to enforce, he says, because it’s not always clear whether someone is part of an event or protest or a bystander. (The North Carolina law, for one, also bans armed bystanders.)

Arresting armed protesters, in this officer’s mind, means that “you’re kind of infringing on someone’s Second Amendment right. But at the same time, you can exercise your Second Amendment right – just … leave [the gun] in your vehicle. My thought process is, if you don’t feel safe in that protest without your firearm, then don’t go to that protest.”

“Manifestations of bias”

The Brennan Center for Justice has found evidence of “unconscious manifestations of bias” in police response to protests. But some bias may be more overt – federal agencies, including the FBI and the Department of Homeland Security, have also warned about explicit expressions of white supremacy inside some police forces, as well as “active links” between white supremacist militia members and some law enforcement officials.

The Trump administration has sought to downplay those threats, pointing to protesters as the real threat to public safety. Attorney General William Barr, in a conference call with U.S. attorneys earlier this month, encouraged prosecutors to be aggressive in pressing charges against violent protesters, including possibly charging them with plotting to overthrow the U.S. government. On Sept. 21, the Justice Department named New York City; Portland, Oregon; and Seattle as “anarchist jurisdictions” that have permitted violence and property destruction to persist, and thus are at risk of losing federal aid.

More broadly, in interviews with dozens of police chiefs in Michigan, Arizona, and California, the sociologist Jennifer Carlson found that police and armed, far-right demonstrators do not so much openly collude as make common cause in fast-moving, dynamic situations on the street.

“Mass shootings are a key reference point that police use when talking about why they see private armed civilians as sort of a net positive for policing,” says Ms. Carlson, author of “Policing the Second Amendment,” published this month.

On the other hand, says Dr. Carlson, “police definitely don’t like open-carriers. They’re a pain. They’re an annoyance. But they talk about it more as a public nuisance than an aggressive crime.”

But on the ground, as police are under scrutiny from both the public and many elected officials, the bonds between cops and armed “citizen protectors” – who see gun-carry as a civic duty and responsibility – have likely strengthened, Ms. Carlson finds in her work.

“We’re in this long, long shadow of the war on crime, this idea that crime is a central social problem, and that all bets are off when dealing with problems of crime and disorder,” she says. “This is where Americans throw down to address social problems. And that whole apparatus is wrapped up in racial ideologies that are aggravated in the context of … apocalyptic thinking – this idea that 2020 is the season finale of the series, ‘America.’”

“Where do we go from here?”

Indeed, for some who study the strength of democracy in nations around the world, the rise of armed vigilantes in America is reminiscent of what happens in weakening democracies on the verge of authoritarian rule.

 “I think that’s why it’s such an ugly election: People are recognizing it’s a constitutional crisis that the country is in, and where do we go from here?” says Emira Woods, a founding board member of Africans Rising for Justice, Peace and Dignity, a network of pan-African social movements.

Racial justice protesters are “demanding that the country divest from what has brought harm to our communities since the slave patrols – and let’s instead envision a society that works for all of us,” says Ms. Woods.

For many militia members, mob rule in the streets comprises the real threat to democracy.

Virginia militia member Kurt Feigel says he doesn’t like elected leaders leaning on police to let people “run wild in the streets,” but he also takes issue with policies that have led to the militarization of policing.

He has joined permitted rallies, but has not traveled to confront protesters. He meets monthly with the sheriff, not, he says, to coordinate, but to keep him apprised of the group’s activities.

“I look at law enforcement as a barrier between the victim and perpetrator – so that if somebody commits a crime against me, I don’t have to feel the need to take vengeance on them. The law will do that for me,” says Mr. Feigel, commander of the Bedford Militia in Bedford County. “So when the law is not allowed to do that for me, then you start having vigilantism, where you have people just saying, ‘Well, fine, I’ll just do it myself.’”

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