Professor Provides Insight on Governor’s Proposed Protest Laws

By Mizelle Mayo

Reporting Texas

On Sept. 24, Texas Gov. Greg Abbott suggested legislation that would require jail time for anyone damaging property or causing injury during a protest. His proposals included a minimum six-month jail sentence for striking a police officer during what Abbott called a “riot” and fines for organizations that assist or fund events that turn violent.

“Texas will always defend the First Amendment right to peacefully protest, but Texas is not going to tolerate violence, vandalism and rioting,” Abbott said during a news conference in Dallas.

Amid national protests over police brutality and systemic racism, Tennessee, North Dakota, South Dakota and Oklahoma have passed laws that take aim at protestors — part of a law and order focus in more than dozen, mostly GOP-controlled, states.

Edward Maguire is a professor of criminology and criminal justice at Arizona State University whose research focuses in part on police response to protests. Reporting Texas spoke with Maguire on the phone about Abbott’s proposals. Herewith excerpts, edited for clarity:

On the effect of Abbott’s proposals:

What the governor is trying to do here is he’s trying to use severe sanctions as a way of shutting down protests. And unfortunately, not only does [this not] work, it often backfires. 

Texas has laws in place that are capable of being used to handle these events if police handled them correctly. And so changing police procedures can go a long way toward handling these events, better [than] passing these sort of really severe blanket laws. We’ll do nothing other than chill First Amendment expression.

On the national wave of proposed protest laws:

I think governors are responding to pressure from their constituents to do something about what the people are perceiving as violent and out of control protest. I think the governors are just trying to be responsive to their constituents and to demonstrate that they’re doing something about the problem.

I think what governors ought to be focusing their attention on is how we police these events, how police agencies process these types of events.

On protest policing:

Anybody who’s setting a fire, throwing a Molotov cocktail, throwing rocks and bricks, anybody — police officers included — should just simply be arrested. But in a crowd event, there’s a very particular way that police have to do that. They have to communicate with the crowd about what they’re doing anytime they take enforcement action because it’s really easy for rumors and misinformation to spread in a crowd. So police enter the crowd to make an arrest and all of a sudden, the entire crowd believes that somebody who’s innocent is being arrested, for instance, or someone is being targeted because of their race.

If the crowd incorrectly perceives that to be the case, now you’ve got a much bigger, angrier or more defiant crowd on your hands. And so we urge police to reinforce for the crowd sort of what the expected behavior is.

On examples of police doing the right thing when handling a protest:

I’ve certainly seen it many times in past protests. I had an interview today, this morning, with a police force in England. And one of the things that they talked about is they use something called PLT’s, protect liaison teams. 

They take these officers and they dress them in a different colored jacket. They have their ordinary police officers [who] are wearing a yellow jacket, it’s like very bright. They dress their PLT officers in light blue jackets because they want to distinguish them for the crowd. 

These PLT’s, from the moment a of protest is announced, will be working with protest organizers to try to just make sure if there are going to be counter protesters, that everybody stays safe and set down their expectations for behavior and so forth. The PLT’s will stay in contact with protest organizers before, during and after the event. They’re in constant communication with the crowd. Their goal is just constant communication and de-escalation to try to keep people calm.

On examples of police doing the wrong thing when handling a protest:

Unfortunately, many U.S. police agencies think the right way to handle protests is not to talk at all. 

It’s really the opposite of what they should be doing. We want the crowd to see them as human beings. We want the crowd to experience their humanity. We want the crowd to think, you know, if we throw a brick or a rocket, we’re hurting a human. It’s not a robot. It’s not right. 

We want to humanize the police. We want them engaged collectively in de-escalation. Standing in riot gear and forming a skirmish line and not talking is a terrible way to handle these events.

How do we balance public safety and our First Amendment right to protest?

We want officers to be in their regular soft uniforms [as opposed to riot gear] and talking with crowds, communicating with crowds. Just because you don’t like what somebody’s saying you can’t make an arrest. You don’t like the way somebody looks or the way somebody’s looking at you, don’t make an arrest. 

Somebody is lighting things on fire, smashing buildings and throwing harmful objects at police, then arrest that person. But communicate with the crowd about why you arrested them. So that you’re reinforcing for the crowd what your boundaries are. If you cross this line, we’re going to arrest you. 

On riots vs. protests:

When acts of violence or property damage start to emerge in a protest and they’re very isolated, you know, like a random person who throws a bottle or a random person breaks something, I don’t think we have a riot yet because it’s not the group engaging in destructive or violent behavior. It’s [an] isolated individual acting in a destructive or violent manner. So I think at that point, we’re still in the protest zone, not in a riot zone.

On severity of punishment vs. certainty of conviction:

If you try to enforce these really harsh laws and then you start running into all kinds of constitutional issues, and you’re not able to secure a conviction, then you have a low certainty and a high severity. That doesn’t deter people. It doesn’t work.

So imagine a different scenario, no new laws. Imagine a different scenario, a person shows up to a protest and throws a Molotov cocktail. And the police have, from the beginning, said anybody who throws an incendiary device is going to get arrested, prosecuted and imprisoned.

Then it gets communicated in the protest world — don’t do that. There’s a really high likelihood you’re going to get locked up if you do that. 

Instead of legislators putting in place these really harsh sanctions for committing offenses, we should use existing legislation. We need to jack up the certainty that if you light a fire, if you throw a Molotov cocktail, if you throw a brick at a police officer, there’s a really high likelihood that you’re going to get arrested and successfully prosecuted.