Joe Biden has a valuable chance to reform the way police deal with protesters

chicago protests
Police block a march route for Black Lives Matter Protesters on Michigan Avein Chicago, United States, on July 25, 2020.
  • There have been times in US history where police response to protesting was commendable.
  • Today, police have only been known to escalate dangerous situations.
  • Joe Biden has a unique chance to reform police departments and emphasize de-escalation tactics.
  • Sarah A. Soule is the Morgridge Professor of Organizational Behavior at the Graduate School of Business at Stanford.
  • Christian Davenport is a Professor of Political Science and Faculty Associate at the Institute for Social Research at the University of Michigan.
  • This is an opinion column. The thoughts expressed are those of the authors.

Law enforcement's aggressive response to the eruption of protests against police violence and systemic racism this summer signals that protest policing in the US is regressing, rather than taking steps toward rectification. Protest policing, simply put, is the collection of strategies and tactics that police and federal agents use to control crowds of people who gather to protest.

As President-elect Joe Biden nears inauguration, police reform remains top of mind for many Americans. Biden's criminal justice plan focuses on community crime prevention and expanding accountability of officer misconduct, but if he wants to help eradicate the excessive enforcement tactics we witnessed police using this summer, he need not look further than the 1970s.

Until the 1970s, protest policing in the US followed a model of "escalated force." During this period of the "bad old days," police had discretionary power to intimidate, tear gas, beat, arrest, and even kill protesters with seemingly no limitation nor fear of accountability or punishment. In the 1970s, following widespread citizen unrest (and extensive media coverage thereof), two federal legal decisions (Brandenburg v. Ohio and Watts v. United States), and the publication of the Kerner Commission report, US protest policing moved to a new model of "negotiated management."

Police in this period were less aggressive toward protesters, and preemptively engaged them such that force could be prevented before it even started. If interactions did get physical and violent, the exchange was limited, with police using only targeted strikes and generally avoiding aggressive confrontation with entire crowds. In many ways, these were the relative "good old days" of protester-police interaction. 

This is where many of us thought we were until the police response to the wave of protests that took place in the US this summer. As we have witnessed (perhaps most notably in Portland, OR and Kenosha, WI), the negotiated management model does not characterize how police and federal agents (and self-appointed armed citizens) dealt with protesters in 2020. Rather, it appears that the policing of protesters has returned to the 1960s style of escalated force, or, worse.

The erosion of negotiated management underwent glacial changes that can best be seen only in hindsight. By most accounts, the shift happened after the terrorist attacks on September 11, 2001, after which authorities quickly moved to monitor and curtail dissident activity throughout the US, significantly blurring the line between threatening and less-threatening individuals and organizations.

The restraints placed on political surveillance, search and seizure, and arrest and detention were all significantly relaxed. Common conceptions of "domestic terrorism" were broadened to include any individual or group that used coercion or the threat of coercion to influence policy, personnel or institutions - potentially including groups such as Greenpeace. In addition, there was a reported increase in the militancy of law enforcement agencies when they confronted protest of all kinds - encompassing everyone from Mothers Against Drunk Driving, to anti-abortion protesters, to those protesting the war in Iraq.  

Others argue that the erosion of negotiated management happened earlier, in particular during the "Battle of Seattle" in 1999, which was a large-scale, multiple-day confrontation between anti-globalization activists and Seattle police.  Following this event, law enforcement throughout the nation engaged in training to prepare for similar confrontations with activists.  Those advocating for this earlier timing maintain that the terrorist attacks of September 11, 2001 merely extended and institutionalized protest policing patterns established in 1999. 

Regardless of the precise timing, the backsliding toward the escalated force model is troubling because our democracy depends on citizens' right to express their opinions collectively in (ideally peaceful and nonviolent) protest.  In some ways, we may be closer to a turn back to negotiated management than we think, but we caution that the road back is not assured. 

As was the case before the original switch to negotiated management, we are certain that there will be legal cases across different jurisdictions throughout the country, however it remains to be seen how these will turn out. For instance, a recent ruling by a federal judge held the Seattle Police Department in contempt for violating an order to stop the "indiscriminate" use of chemical irritants or projectiles during Black Lives Matter protests, but also cited instances where police were justified in using force against demonstrators. 

Similarly, we are sure that there will be a government-sponsored commission report (like the Kerner Commission Report) investigating policing. That said, the quality of the report will be intricately connected to how the Biden-Harris administration chooses to prioritize police reform as well as how thorough elected officials will go with their analysis. 

The Biden campaign's platform promises to strengthen America's commitment to justice and reform our criminal justice system, proposing an investment of $300 million for police departments to hire and train more officers on "community-oriented" policies. However, it's unclear from current research the effect community-focused strategies have on officer behavior and use of force at protest events.

If we learned anything from the negotiated management era, it is that we also need to take seriously the root causes of the protests, and begin to address them.  If our current leaders do not have the will nor capacity to do this, our hope for 2021 is that the words of the aggrieved and grieving will not be lost on the next administration.

Christian Davenport is a Professor of Political Science and Faculty Associate at the Institute for Social Research at the University of Michigan, Research Professor at the Peace Research Institute Oslo and Elected Fellow at the American Association for the Arts and Sciences.

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