Summer 2021 1 : 1

2 Under Texas Government Code Chapter 418, mayors are designated as “emergency management management “emergency as designated are mayors 418, Code Chapter Government Texas Under 2 The timeline of events of described timeline events The following in the include the paper May 29, Locations: DPD Headquarters and Surrounding Streets. Streets. Surrounding and 29, Locations: Headquarters May DPD Department Dallas at march rallies scheduled and Organizers Headquarters. pepper balls, of deployment DPD included interventions Government gas. tear and rounds, sponge 30, Location:May Hall City Hall. City a rally at planned Local organizations and projectiles of the deployment included interventions Government . during gas tear 31, Location:May Dallas Downtown Disaster,” of a Declaring LocalState “Proclamation released a mayor The a curfew zone. established which directors” and may act in accordance with a city’s management plan. management a city’s with act in accordance may and directors” Government interventions included the use of flashbangs during during flashbangs the use of included interventions Government protest. Crowley Frank Courthouse 1, Locations: Headquarters, DPD June Hill Bridge Hunt Margaret and flashbangs, protestors, kettling included interventions Government detention, and arrest mass bombs, smoke gas, tear pepper spray, protestors. detained of transport the denied use 1, the police department June on statement a public In protestors. against weapons chemical of THE TEXAS A&M CRIMINAL DEFENSE CLINIC DEFENSE CRIMINAL A&M THE TEXAS ...... POLICE REPORTED OF ANALYSIS A LEGAL IN DALLAS: 2020 SUMMER INTERACTIONS, ...... DALLAS POLICE DEPARTMENT, “After Action Report,” (Aug. 14, 2020), (Aug. Action Report,” “After DEPARTMENT, POLICE DALLAS 1 https://dfw.cbslocal.com/wp-content/uploads/sites/15909545/2020/08/ 30, 2021). July accessed (last Final-After-Action-Report-1.pdf Following the , protests protests Floyd, George of the murder Following the world. around emerged police violence against The occurred in Dallas,Several Texas. local protests where local police to protests, Dallas of deployed city protestors. of hundreds against used theforce city describe protesters, trapped On-the-scene accounts and attendees, rubber tear-gassed use bullets, of protestors. to militarized responses other This white paper is a constitutional law analysis analysis law a constitutional is paper This white protestors with interactions Dallas’ of the City of outlines 1, 2020. The paper June 29 to May from during concern constitutional of areas potential media considers analysis legal The the protests. protesters by offered statements sworn and coverage policy Recommended changes reports. agency and tactics and kettling aggressive eliminating include weaponry to “less-than-lethal” from divestment in Dallas engaged of citizens the safety ensure speech. protected 2 Government Government i

7 6 ii https://www.dmagazine.com/frontburner/2020/07/dpd-internal-report-tear-gas- Gregory v. Chicago, 394 U.S. 111, 112 (1969); Brown v. Louisiana, 383 U.S. 131, 141- 383 U.S. Louisiana, v. 111, 112 (1969); Brown U.S. 394 Chicago, v. Gregory margaret-hunt-hill-bridge/ . margaret-hunt-hill-bridge/ 6 7 Reports detail force used against non-violent protesters protesters non-violent used against Reports detail force spaces. in public while demonstrating II. Speech as a Assembly and Constitutionally Protected Activity: from government the prohibits Amendment First The to people of the right speech or of the freedom abridging in public demonstration Peaceful peacefully assemble. the First by protected conduct of falls the sphere within Amendment. attorneys in Dallas established a legal hotline for protestors. protestors. for a legal hotline in Dallas established attorneys DPD use and protest ofthe accounts official that Noting protestors’ many from differed the protests at force of opportunity an protestors offered the coalition accounts, their experiences. Pro documenting a statement provide to what of recollections protesters’ recorded attorneys bono called in legal documents occurred the protests during a in which statement a written is A declaration declarations. the contents that swears this in case, the protester, declarant, attorneys in fact true. Volunteer are document the written of protestors a dozen over for declarations in-depth on worked are statements 21, 2021. The January 22, 2020 to July from PoliceOversight. ofCommunity file Office with the on and policy factual analysis, bases,legal The timeline, local from and draw in this analysis recommendations provide declarations Protestor news sources. national statements described. Declarant events for context additional italicized. are 142 (1966); Henry v. City of Rock Hill, 376 U.S. 776 (1964); Fields v. South Carolina, Carolina, South v. 776 (1964); Fields 376 U.S. Rock Hill, of City 142 (1966); Henry v. 44 (1963). 375 U.S. interventions included the use of rubberless- the firing use bullets, of included interventions the during intimidation reported and than-lethal weapons, protests. The constitutionality of regulation the government’s of the speech based where carefully speech on analyzed is restrictions. of occurred the nature and 5 3

...... 4 ...... A. FIRST AMENDMENT ANALYSIS A. FIRST The First Amendment protects the fundamental rights of rights the fundamental protects Amendment First The allows protection The assembly. speech and of freedom of fear without theiropinions express to individuals The right legal repercussions. or retaliation, censorship, be to protected presumed are assembly free speechto and must government The Amendment. the First under local and State valid. are restrictions why specificallyshow this protection. with also comply must governments I. Overview Congress shall respecting make an no law the prohibiting or religion, of establishment freedom the abridging or thereof, freeexercise the the right of or speech,of the press; of or people petition to peaceably and assemble, to grievances. of a redress for the Government In June 2020, a coalition of organizations and volunteer volunteer and organizations of a coalition 2020, June In Protestor Declarations Declarations Protestor agency media and on centers this paper of the core While experiences from first-hand does incorporate it reports, on-the-ground provide to included are These protestors. peacefully. protest to those present of impressions The U.S. Constitution places limitations on government government on limitations places U.S. Constitution The The protest. in engaged individuals against interventions analysis our to integral are Amendments Fourth and First rights individuals’ because they actions protect the city’s of be to free the from right and assembly free speechto and and detention as such police interventions unwarranted searches. After media and protestors’ footage of the city deploying deploying of city the footage protestors’ and media After the statement. retracted DPD emerged, gas tear Gitlow v. New York, 268 U.S. 652 (1928). 268 U.S. York, New v. Gitlow This paper does not analyze the constitutionality of the curfew, but rather use of force force of use rather but of the curfew, analyze constitutionality the does not This paper Peter Simek, Internal Report Shows DPD Chief Hall Misled Council About Using Tear Tear Using CouncilAbout Misled Chief Hall DPD Report Shows Internal Simek, Peter 5 4 3 by officers, prior to curfew and outside ofthezone. curfew outside and to curfew prior officers, by Gas on Protesters, DMAGAZINE (Jul. 22, 2020, 2:00 PM) https://www.dmagazine. 2:00 PM) 22, 2020, (Jul. DMAGAZINE Protesters, on Gas com/frontburner/2020/07/dpd-internal-report-tear-gas-margaret-hunt-hill-bridge/ 3 One stated, protester DPD vehicles already already vehicles DPD v viii vi 17 One declarant recounts recounts declarant One 16

vii “There “There a declarant, to According 15 One declarant that walked to the bridge the walked bridge to that declarant One iv DPD reports state that the city told protestors protestors told the city that state reports DPD 14 News interviews and declarants state that officers officers that state declarants interviews and News

iii Tear gas was thrown at us. I saw a girl take a rubber a rubber take a girl us. I saw at thrown gas was Tear face the in decked get a guy I saw face. the to bullet gas. tear of whiff a good I got gas can. a tear with on amount a good and eyes, my in it of some I got go couldn’t we furiousbecause was I again. skin my back. go couldn’t we and forward CENTRAL TRACK, https://www.centraltrack.com/wp-content/uploads/2020/07/ CENTRAL TRACK, Tear Using Council About Misled Chief Hall DPD Report Shows Internal Simek, 14. Action Report,” “After dwards v. South Carolina, 372 U.S. 232, 237 (1963). (Supreme Court held that Court that held 232, 237 (1963). (Supreme 372 U.S. Carolina, South v. dwards kettling. on See discussion Section for B (II) below not to cross the bridge. cross to not After surrounding them, the DPD used chemical weapons weapons used chemical DPD them, the surrounding After arrests. the began mass and protesters on 15 16 17 At the time individuals were surrounded and weapons were were weapons and surrounded were the time individuals At the indicate agencies and protestors from reports deployed, concerns raises This traffic. through closed was to bridge be justified not may the bridge on measures the extreme that in traffic interest a compelling for applied regulation as traffic. closed to a bridge of management 13 14 demonstrators and effected a mass arrest on Margaret Hunt Hunt Margaret on arrest mass effected a and demonstrators Hill Bridge. an officer waving them on, “keep it moving,” asthey walked moving,” it “keep on, them waving officer an thebridge. to on Preliminary-After-Action-Report-Dallas-Protests-May-29-through-June-1.pdf (Last Preliminary-After-Action-Report-Dallas-Protests-May-29-through-June-1.pdf 29, 2021) Jul. Visited Gas Protesters. on protesters were justified in singing religious songs, clapping and stomping, after police after stomping, and clapping songs, religious singing in justified were protesters their on violence of threat or violence no was because there disperse, them to ordered part). were cops at the entrance of the bridge, but they did not block block not did they but bridge, the of entrance the at cops were the on walking started we when us stop not did and off it b r i d g e .” recounted, “usually when the cops didn’t want us to go in a in go to us want didn’t when the cops “usually recounted, us.” stop theycertaindirection, would both sides. on cars to access blocked did not warn them off the bridge. the them off warn not did “the entire time that we were on the bridge, I did not see any any see not I did bridge, the on were we that time entire “the out moved protesters the which vehicle, one for except traffic, safely.” through let to way the of Protestors cannot Protestors be The government may may government The 8 9 Mere annoyance, slowing slowing annoyance, Mere 12 Content neutral regulations are those are regulations neutral Content 11

...... 13 ...... 10 traffic, or inviting dispute is not enough to justify to police enough not is dispute inviting or traffic, interference. denied access broadly and absolutely. denied and access broadly June 1, DPD surrounded protestors, deployed weapons on on weapons deployed protestors, surrounded 1, DPD June Regulation of traffic, ensure safety and efficiency of vehicles vehicles of efficiency and safety ensure traffic, of Regulation a permissible restriction considered is protesters and reasonable must be a regulation city’s The protest. on and allowing interest state to that tailored narrowly fit, The protestors. for communication of avenues alternative a not is traffic of the slowing that Court held has Supreme protesters. with interfere to reason Regulation Traffic of Reports describe the city’s restrictions on speech during the speech during on restrictions Reports describethe city’s rights Amendment First of infringements Where protests. that show must alleged, the government are legala in forum the violate not did assembly speech and on theirregulation Amendment. First III. First Amendment Concerns: Amendment III. First Government regulations must be content-neutral, becontent-neutral, must regulations Government government important an achieve to tailored narrowly of channels alternative sufficient open leave purpose, and communication. Public streets, sidewalks, parks, and other public places places public other sidewalks, and streets, parks, Public the and forums public traditional for the “archetype” are Rights. Amendment First of exercise impose time, place, or manner restrictions, but only if they only but restrictions, manner or place, time, impose regulated of the to content the reference without justified are speech. In protest cases, the Supreme Court has held that unless unless that Court held has cases, the Supreme protest In the police safety, public to threat immediate an is there protests. with interfere not may that serve purposes unrelated to the content of the speech, of the serve content to that purposes unrelated certainmessages affects incidentally whether it of regardless or the message words, other In others. not and speakers or regulation. of the form drive speaker cannot Papineau v. Parmley, 465 F.3d 46, 57 (2d Cir. 2006). (protesters in this case posed no 2006). (protesters 46, 57 (2d Cir. 465 F.3d Parmley, v. Papineau See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984); see 468 U.S. Non-Violence, Creative for Community See v. Clark Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Racism, 491 U.S. Rock Against v. Ward Carey v. Brown, 447 U.S. 455, 460 (1980) 447 U.S. Brown, v. Carey Snyder v. Phelps, 562 U.S. 443, 456 (2011); Frisby v. Schultz, 487 U.S. 474, 480, 474, 487 U.S. Schultz, v. Frisby (2011); 456 443, U.S. 562 Phelps, v. Snyder 12 11 9 10 8 (1988). (Although the messages of the picketers in this case were hurtful and crude… hurtful and in this case were the picketers of the messages (1988). (Although acted peacefully, and street a public from across place in a public were the picketers Amendment). the First under protected were signs and their protests therefore “clear and present danger” of immediate harm or violence because they made no threats because threats they no violence made or harm immediate of danger” present and “clear they no had and disorder, or violence incite they else, not did anyone the police or to dangerous weapons). Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 648 452 Inc., Krishna Consciousness, Societyfor International v. Heffron Inc., Council, Consumer Citizens Virginia Pharmacy Bd. v. Virginia (1981) (quoting 748, 771 (1976)). 425 U.S. 4 xx

24 In these civil suits, these civil suits, In 23 25

xix xxi Kettling protesters on the bridge and deploying non- deploying and the bridge on protesters Kettling lethal weapons; while other curfew violations for protesters Arresting officers; by stopped not are (non-protesters) bystanders Use of indiscriminate weapons against all protesters; against weapons indiscriminate of Use Police comments to protesters that are not content- not are that protesters to comments Police neutral; arresting or charges underlying for cause probable Lack of who are others with based association on individuals crimes. committing Nieves v. Bartlett, 139 S. Ct. 1715 (2019) (The Court held that demonstrating the lack lack the demonstrating 1715 (2019) (The held that Bartlett, Court 139 S. Ct. v. Nieves Black Lives Matter Seattle-King City. v. City of Seattle, 466 F. Supp. 3d 1206, 1214 Supp. 466 F. Seattle, of City v. City. Seattle-King Matter Lives Black demonstrators must show that the police were retaliating retaliating the police were that show must demonstrators in public because they solely were individuals against protesting. protected in a constitutionally involved were protesters The effect deterring and chilling a have can actions Police activity. voice and assemble to their right exercising protesters on emotional and injuries physical report Declarants dissent. be can potentially that the city by Reported actions trauma. viewed as activity protected protesters’ with interfering substantially include: 25 24 IV. First Amendment Retaliation Amendment First IV. First to open the city speech leaves on Infringement claims. retaliation Amendment of probable cause for an underlying criminal charge reinforces retaliation evidence); retaliation reinforces criminal charge underlying an for cause probable of reason be to imposed by liability (For (1961) 299 290, U.S. 367 States, United v. Noto itself the group that proof clear with necessary is establish it to alone, association of to further those a specific intent held the individual possessed that unlawful and goals proper 1996) (“the 1363, 1372 (9th Cir. 110 F.3d Jordan, Collinsillegal v. aims.).; adequate an ensure to thegovernment for is actual violence and potential to response than rather conduct, in such those who actually engage arrest to and police presence, measure.”). a prophylactic as conduct Amendment First legitimate suppress to (2020) (The Court explained that using weapons against all protesters- not just violent violent just not protesters- all against weapons using (2020) (The that explained Court by motivated substantially were the police actions that inference an - supports ones activity). Amendment Plaintiff’s First protest activities, I did not hear any officers communicate communicate officers any hear not I did activities, protest employing to prior protesters the to warnings or instructions use force.” of the

x A xvii22 In xiv xv

20 According According 18 xiii

19 As one declarant declarant one As

xi

xvi A demonstrator stated, “the stated, A demonstrator ix One declarant states: “Althoug states: declarant One h These accounts do not align not with do Theseaccounts xviii xii

...... Reports indicate that many present viewed DPD’s actions actions viewed DPD’s present many that Reports indicate were there that stating unnecessary, as the crowd against a of the exception with protesters by actions violent no away kicking and bottles water throwing individual rare them. near thepolice shot canisters Protestors on Margaret Hunt Hill Bridge report kneeling kneeling report Bridge Hill Hunt Margaret on Protestors peacefulness. and their compliance show to to testimony, DPD officers firing rubber bullets firing officers DPD testimony, to protesters. non-violent of crowds into indiscriminately other cases, officers continued to use tear gas and flashbangs andflashbangs gas to use tear continued cases, officers other while to retreat. attempted protesters non-resisting protester was pepper-sprayed directly in the directly pepper-sprayed was protester non-resisting were the ground on laying protesters zip-tied other face and up. heads lifting their or yelling for pepper-sprayed Demonstrators state that tear gas, flashbangs, and and rubber flashbangs, gas, tear that state Demonstrators verbal or “no with them suddenly, on deployed bullets sort.” any of warning Protestors interviewed by media as well as declarants declarants as well media as interviewed by Protestors public to threats immediate caused DPD that reported declarants, to according actions, peace, DPD’s and safety the protests. at chaos caused on the banging were protestors some reports that city The at thrown canisters gas back kicking rocks, with vehicles police. towards bottles water them, throwing The city is permitted to reasonably control crowds where where crowds control reasonably to is permitted city The interest the state Again, safety. public to a threat is there to tailored narrowly the regulation and be compelling must have typically officials harm, imminent Absent interest. that disperse they must that protesters inform to obligation an required. is this order with comply time to and Preventing Violence on Officers on orOthers Violence Preventing states, ”although some individuals may have been verbally verbally been have may individuals some ”although states, the given have should saw I that nothing antagonistic, needed they as though feel fearful or be to reason any police to respond with force” reports that protests had transformed into ‘riots.’ into transformed had protests that reports Reports indicate a problem with communication of of communication with a problem Reports indicate DPD examination. under the days throughout warnings the that and dispersal making announcements reports the crowd.” “incited system announcement public event was peaceful prior to the intrusion of the police.” the of intrusion the to prior peaceful was event there were police officers on the streets monitoring the monitoring streets the on officers police were there To establish a First Amendment retaliation claim, plaintiffs must show that (1) they that show must plaintiffs claim, retaliation Amendment a First establish To See “After Action Report,” 9. Action Report,” See “After Action Report,” See “After 9. Action Report,” See “After Parmley, 465 F.3d at 60. at 465 F.3d Parmley, 9-12. Action Report,”, “After 23 20 21 22 18 19 were engaged in a constitutionally protected activity, (2) the defendant’s actions would would actions (2) thedefendant’s activity, protected constitutionally in a engaged were activity, protected in the engage to continuing firmness from ordinary of chill a person in the defendant’s factor motivating or a substantial was activity (3) the protected and 2006). 755, 770 (9th Cir. 467 F.3d Sch. Dist., Clatskanie v. Pinard conduct. 5

30 The they xxix xxiii

Police cut cut Police xxvi xxiv 29 xxiv As described by affected described affected As by

xxvii xxii “When we tried tried we “When stated: declarant One 28 “usually, when the cops didn’t want us to us to want didn’t cops the when “usually, xxviii “Without warning or provocation, the police began to to began police the provocation, or warning “Without Another noted, Tear gas and all other chemical weapons were banned by the Geneva Protocol of of the Geneva Protocol by banned were weapons all chemical other and gas Tear to turn back there was a line of cops behind us. . . we were us. were . . we behind cops of a line was there back turn to now surrounded on all sides.” gas forced individuals to remove their masks due to skin to due their masks remove to individuals forced gas for a risk coughing, causes it Simultaneously, irritation. a pandemic. during in close proximity people shoot smoke bombs into the crowd and used noisemakers that that used noisemakers and crowd the into bombs smoke shoot released also The . . Officers gunfire. automatic like sounded began people and crowd, the into bullets rubber gas and tear vomit.” and gag to protesters, this force was not responsive to an immediate immediate an to responsive not was this force protesters, declarant One property. or person any to protestors by threat recalls, On June 1, 2020, at the Margaret Hunt Hill Bridge, one one Bridge, Hill Hunt the Margaret 1, 2020, at June On cars) barriers unblock (police officers witnessed protester access. allowing thus bridge, the closed originally off that 30 The use of gas also causes health-related concerns. health-related gas alsoof use causes The asthma. with declarant one affected gas and Irritants would fire rubber bullets, tear gas, etc. into the crowd.” Many crowd.” the into etc. gas, tear bullets, rubber fire would warning. no they report heard demonstrators xxv last summer. DPD of a line that stated 29, 2020, a declaration May On tear deployed and then groups filedprotestors in between flashbangs. and gas off the entry and exit to the bridge by surrounding them on them surrounding by bridge to the exit entry and the off having moment, at this describe, protesters The both sides. the crowd. within chaos causing go, to nowhere and Bombs, Smoke Spray, Pepper Gas, Tear Flashbangs, Bullets Rubber the during force non-lethal of forms used various DPD smoke spray, gas, tear pepper flashbangs, including protests, rubber bullets. and bombs, 1925. However, The United States reserved the right to use such weapons as riot as riot reservedweapons usesuch to States the right United The 1925. However, weapon a chemical is true gas tear It’s check: Fact Sadeghi, McKenzie means. control 6, 2020). (Jun. USA TODAY in war, banned https://www.usatoday.com/story/news/factcheck/2020/06/06/fact-check-its-true- tear-gas-chemical-weapon-banned-war/3156448001/. On May 30, 2020, a protester reported the officers did “come the officers reported 30, 2020, a protester May On cornered, were people once and blocks, different down go in a certain direction, they would stop us.” stop would they direction, a certain in go Under the Fourth the Fourth Under 27 This analysis is not on basedthe not is analysis This 26

...... B. FOURTH AMENDMENT ANALYSIS AMENDMENT B. FOURTH subjective view of the police. Traditionally, this has meant meant this has Traditionally, the view police. of subjective viewed as objectively is individual an against the force that issue, at crime the severity of “the to necessary due a court by of safety the to threat immediate an poses suspect the whether arrest resisting he actively is whether and others, or officers the flight.” by arrest evade to attempting or Amendment, unreasonable actions may include excessively excessively include may actions unreasonable Amendment, used seize to protestors. harmful tactics weapons and ConfinementKettlingand The tacticis technique. control a police crowd is Kettling involves It the country. across scrutiny increased under officers Police arrests. make to protesters of the corralling rubber as bullets such then use force, and allblock exits arrests. start making to protesters subdue to gas, tear and protests during being kettled of instances report Protesters Police are constitutionally permitted to use force, but but use force, to permitted constitutionally are Police and excessive is Force reasonable. is force when that only in light reasonable objectively not is when it unconstitutional circumstances. existing of II. Fourth Amendment Amendment II. Fourth Concerns: Excessive Force The Fourth Amendment protects against excessive force and and force excessive against protects FourthAmendment The seizures. and searches unreasonable I. Overview The right of the to The right peoplebe secure in their against effects, persons,and houses,papers, shall seizures, searches and unreasonable not shall but issue, be no Warrants violated, and or Oath by cause, supported probable upon andparticularly the affirmation, describing be place searched, to things the persons or and be seized.to Cassandra Jaramillo, Why Dallas Police Chief Reneé Hall made the call to use tear gas the call gas made use tear to Chief Reneé Hall Dallas Police Why Jaramillo, Cassandra CENTRAL TRACK, https://www.centraltrack.com/wp-content/uploads/2020/07/ CENTRAL TRACK, Graham v. Connor, 490 U.S. 386, 396 (1989). 490 U.S. Connor, v. Graham Id. 29 28 26 27 at , THE DALLAS MORNING NEWS (May 30, 2020), https:// (May NEWS MORNING THE DALLAS protests, Floyd George at www.dallasnews.com/news/2020/05/30/why-dallas-police-chief-renee-hall-made-the- call-to-use-tear-gas-at-george-floyd-protests/ Preliminary-After-Action-Report-Dallas-Protests-May-29-through-June-1.pdf (Last Preliminary-After-Action-Report-Dallas-Protests-May-29-through-June-1.pdf 29, 2021). Jul. Visited 6 32 Any arrest arrest Any xxxv 34 One protestor also states, “[DPD “[DPD also states, protestor One 33 Some believed officers directed them them directed believed Some officers xxxiv Silas Allen, Kettling Tactics Dallas Police Used Steeped in Controversy, Dallas in Controversy, Steeped Used Dallas Police Tactics Allen,Silas Kettling The practice of kettling peaceful protesters poses safety peacefulprotesters kettling of practice The to violent inherently it is only Not attendees. for concerns the protesters makes it but people, of horde a mass kettle between tensions this increases and frightened and upset Asthe DallasObserver police officers. and protesters into fell quickly been had a peaceful protest “What reported, the east toward back scrambling began protesters as chaos on in closing officers of line a find to only the bridge, of end well.” as side, that them from to continue marching on the bridge. Many reports did did reports Many the bridge. on marching continue to for opportunity no saw or a dispersal warning hear not kettling The detention. to prior leave to peaceful protesters constitute handcuffs zip-tie and arrest mass resulting and protestor detention. the that indicate declarations individual and reports Agency wrongdoing of suspicion individualized have not did DPD arrests. protester 674 for or seizure without individualized suspicion raises Fourth Fourth raises suspicion individualized without seizure or 34 Protesters, especially peaceful protesters, have the right to to the right have especially peaceful protesters, Protesters, while their safety ensure should DPD their opinions. voice highways, the off get to protestors allowing By protesting. potential avoided have could them in, DPD blocking not can be kettling of implications The violations. constitutional those to engaging traumatic extremely and unconstitutional in speech. cause to believe a crime has been committed or is in progress in progress is or been believe a crime has to committed cause “seized” or “detained” is person A individual. an arrest to not believed they were have would person reasonable a if protesters of crowd a detain can officers Police leave. free to after only but present, are circumstances compelling if followed a dispersal order, receive and warned are protestors the order. with comply to opportunity a reasonable by participating were protestors most that Reports indicate observe they hear not did or state Protesters peacefully. Margaret onthe going from anyone stopping officers Bridge. Hill Hunt was] arresting every protester, regardless of their individual their individual of regardless every arresting protester, was] conductor compliance with instruction” Observer 8, 2020). (June One xxx A declarant witnessed a diabetic witnessed declarant A xxxi The practice of kettling protesters protesters kettling of practice The “I heard people crying out in pain from the from pain in crying people out heard “I xxxvi

...... xxxii

...... xxxiii ...... C. RECOMMENDATIONS woman go into shock because of how long she was detained detained was she long how because of shock into go woman the bridge. on during a pandemic was in direct opposition to the public the public to opposition in direct was a pandemic during health recommendations. The form of prolonged detention raises Fourth Amendment FourthAmendment raises detention prolonged of form The force. excessive to related concerns protester states zip-tie handcuffs resulted in swollen and and swollen in resulted handcuffs zip-tie states protester beenhad behind hands “My stated, bruised wrists. Another to arms my raise to unable I was that so long for back my on.” backpack my put Kettling can turn a peaceful protest into a violent event. event. a violent into a peaceful turn can protest Kettling the at this tactic chaos reported, caused declarants As demonstrations. 1. End Kettling Practices 1. End Kettling This next section covers policy for the city to consider. It is It to consider. city the for policy next sectionThis covers to limited are the policy that recommendations noting worth analysis. law Constitutional this paper’s by those implicated During the summer protests of 2020, the citizens in Dallas 2020, the citizens of protests During the summer police and safety public on discussions many in engaged describe deployment DPD declarants Protestor violence. police protesting the streets on out while they were force of violence. Police are permitted to stop and search individuals only if only individuals search and stop to permitted are Police probable must be There suspicion. individualized is there III. Fourth Amendment Concerns: Amendment III. Fourth Detention Suspicionless Another potential concern of excessive force is the manner of of the manner is force excessive of concern potential Another peaceful detained 1, 2020. DPD July on protesters detaining on hours for their arms ties restraining zip with protestors vans, into packed mass, in arrested were Many thebridge. protocols. COVID-19 of in violation transported and Unreasonable Manner of Restraint of Manner Unreasonable zip ties.” ties.” zip CENTRAL TRACK, https://www.centraltrack.com/wp-content/uploads/2020/07/ CENTRAL TRACK, Dundon v. Kirchmeier, 2017 U.S. Dist., LEXIS 222696 at *58 (2017); United States v. v. States *58 (2017); United 222696 at LEXIS Dist., 2017 U.S. Kirchmeier, v. Dundon 2006). Cir. 565, 575 (D.C. 434 F.3d Ramsey, v. Barham 33 31 32 Preliminary-After-Action-Report-Dallas-Protests-May-29-through-June-1.pdf (Last Preliminary-After-Action-Report-Dallas-Protests-May-29-through-June-1.pdf which to belonged alleged contraband what tell to 29, 2021). (Unable Jul. Visited protestor). Mendenhall, 446 U.S. 544, 554 (1980). 446 U.S. Mendenhall, 7 This is 37 38 Dallas Police Dept., Dallas Chief Revamps Police Protocols for First Amendment Amendment First for Protocols Police Dallas Dept., Chief Revamps Dallas Police gas, tear police ammo, deal $8M for Dallas Council approves City Bailey Jr., Everton 38 39 Further investment in less-than-lethal weapons implicates implicates weapons less-than-lethal in investment Further declarants, to According protestors. of safety the health and during danger and chaos sparked thesethe use weapons of of Dallas citizens The concerns. safety exacerbating protests, policing. to curb violent in efforts rallied marched and have tactics that in violent investment end Dallas and ban can protesters. harm curtail and rights protest Dallas to people of allows deservecitizens that a city without the risk of excessive force or unconstitutional safety of Dallasmaintain can city The police interventions. this will that hope We protesters. of respect the rights and of reflects the values that build city a to efforts to contribute Dallas. of all the citizens less-than-lethal weapons, except for tear gas, which can only only can which gas, tear for except weapons, less-than-lethal the chief of order by criminal acts or be of used in the event order. outthe give to designated a police officer or not a complete ban against its use during a peaceful protest. peacefula use during its protest. against ban a complete not the policy still but leaves direction, in the right a step is It 22, 2020, July protestors. tactics harming for open the door the Dallas yet council city projectiles, banned order general allocated 2020 that in December of agreement an approved and ammunition police on years five over $8 million “nearly bullets rubber gas and as tear such supplies, less-than-lethal summer.” the over demonstrations used during Activity, DPDBEAT (Jul. 22, 2020).https://dpdbeat.com/2020/07/22/dallas-chief- (Jul. DPDBEAT Activity, revamps-police-protocols-for-first-amendment-activity/ (Dec. https:// 2020). 9, NEWS MORNING DALLAS THE supplies, less-lethal other www.dallasnews.com/news/politics/2020/12/09/dallas-city-council-approves-8m- deal-for-police-ammo-tear-gas-other-less-lethal-supplies/ 36 CONCLUSION

...... 35 ...... Div

The DPD later issued a general order banning the use of use the banning order general a issued later DPD The Tear gas caused significant risk to attendees with respiratory respiratory with attendees to risk significant caused gas Tear exposure crowd in very also dangerous resulted It concerns. without struggled breathe to attendees as COVID-19 to was projectiles of usethese less-than-lethal The masks. a to agreeing DPD with ended that a lawsuit of the subject decree. a consent accepted judge a district after 90-day-ban at the interventions DPD analyzed the has paper This white and 1, 2020. DPD June 29 to May occurred from that protests protestors detained and force Dallas of deployed the City The protections. constitutional implicates that in a manner The protests against police violence during the summer of summer during the violence police against protests The own its Dallas reconsider of to the city a call2020 was for interventions. policing “Less-than-lethal” force refers to instruments other than than other instruments to refers force “Less-than-lethal” injury of serious lessen to the risk meant are that firearms and projectiles, gas, tear of use the includes This death. or protests usedduring DPD very the flash bangs, instruments is 2020. It of the summer during police violence against be used may while these that instruments note to important they still death, can those lead to or injury serious avoid to outcomes. 2. Weaponry Less-than-Lethal from Funding City est Williams v. City of Dallas, No. 3:20-cv-01526-G (N.D. Tex. Filed Jun. 11, 2020). 11, 2020). Filed Jun. Tex. 3:20-cv-01526-G (N.D. Dallas, of No. City v. Williams Dallas man loses eye to “non-lethal” police round during George Floyd protest, protest, Floyd George during police round Dallas “non-lethal” loses eye to man 37 35 https://www.courthousenews.com/wp-content/uploads/2020/06/dallas-pd-tro.pdf attorneys say, CBS NEWS (Jun. 4, 2020, 3:40 PM). (Jun. CBS NEWS say, attorneys https://www.cbsnews.com/news/dallas-man-loses-eye-to-police-sponge-round- during-george-floyd-protest-attorneys/ 8 R. Jordan Decl. | 12. | Decl. R. Jordan B. Gil B. Decl. |13. Miller Decl. J. |32. Decl. R. Jordan May on protest to 17, 2020 (referring | 5, July Miller Declaration J. 30, 2020). L. Daugherty | 23. Decl. | 62. 2 Decl. Anon. 1 Decl | 28. Anon. | 12. Decl. Wasinger J. | 33, 34. Decl. R. Jordan 1, 2020). June on protest to | 27 (referring Decl. R. Mendenhall | 30 Decl. Anon. | 42. Decl. R. Mendenhall | 36. 1 Decl. Anon. L. Daugherty | 46 Decl. ⁋ 12. Decl. | 29; R. 1 Decl. Mendenhall Anon. detaining and tying the zip | 43. (regarding Decl. R. Mendenhall 1, 2020). June on Bridge Hill Hunt the Margaret on all protesters of 4 7-21, page Anon. xvi

...... Anon. 1. Decl. | 29; Anon. B. Decl. | 87; R. Jordan Decl. | 8, 33; L. Decl. | 87; R. Decl. Jordan B. | 29; Anon. 1. Decl. Anon. J. Miller Declaration | 10, July 17, 2020 (referring to protest on May May on protest to 17, 2020 (referring | 10, July Miller Declaration J. B. Gil Decl.; R. Mendenhall Decl. | 15 (both referring to the protest the protest to (both15 | Decl. referring R. Decl.; Gil Mendenhall B. L. Daugherty | 45 Decl. L. Daugherty Decl. | 26, June 14, 2020 (referring to protest on May May on protest to (referring 2020 14, June 26, | Daugherty L. Decl. Anonymous 1 Declaration | 30, July 21, 2020; Anonymous 2 21, 2020; Anonymous | 30, July 1 Declaration Anonymous Id. | 8 (referring to protest on June 1, 2020). June on protest to | 8 (referring Id. R. Mendenhall Decl. | 14 (referring to protest on June 1, 2020). June on protest to | 14 (referring Decl. R. Mendenhall R. Mendenhall Decl. | 26; L. Daugherty | 40. Decl. Decl. R. Mendenhall J. Wasinger Decl. | 18 Decl. Wasinger J. L. Daugherty Decl. | 21; R. Me ndenhall ⁋ 43. Decl. L. Daugherty | 21; R. Decl. Me R. Jordan Decl. | 32; B. Gil Decl.; Anon. B. Decl. | 87; J. Wasinger Wasinger J. 87; | Decl. B. Anon. Decl.; Gil B. 32; | Decl. R.Jordan This white paper was written by the Texas A&M Criminal Defense Clinic, Winter 2021. Contributors include Sarah Sarah include 2021. Contributors Winter A&M Criminal Texas Clinic, Defense by the written was paper This white clinic The Baylor. Rabena, Amber the supervision under of Jessica and Destin Germany, ErikaAhmed, Flores, experts. matter subject other with and Lynne Rambo Emerita Professor with consultation from benefitted (holistic) a whole-client in advocacy criminal rooted defense learn a model of the Criminal Clinic, students Defense In to disciplines experts and in various organizations, community families, client clients, with work ethos. Students student Criminal DallasThe Clinic Defense and Counties. in Tarrant charges misdemeanor facing clients defend community. in our justice enhance to projects on local with organizations collaboratively also work teams R. Jordan Decl. | 32. Decl. R. Jordan Anon. 1 Decl | 28. Anon. B. Gill Declaration, Dec. 1, 2020 (referring to protest on May 31, May on protest to Dec. 1, 2020 (referring Gill Declaration, B. J. Wasinger Declaration | 18, Aug. 11, 2020. | 18, Aug. Declaration Wasinger J. Anon. 1 Decl | 28. Anon. A. Adelman Declaration, July 20, 2020. July Declaration, A. Adelman Declaration | 18, Aug. 11, 2020. | 18, Aug. Declaration 2020).; R. Jordan Declaration | 8, Sep. 22, 2020. | 8, Sep. Declaration 2020).; R. Jordan 29, 2020). Declaration | 86, Aug. 20, 2020; R. Jordan Decl. | 23; R. Mendenhall | 23; R. Decl. Mendenhall 20, 2020; R. Jordan | 86, Aug. Declaration | 15. Decl. xvii xviii xiv xv xvi x xi xii xiii vii viii ix iii iv v vi ENDNOTES (STATEMENTS ON FILE): (STATEMENTS ENDNOTES i ii 30, 2020). on June 1, 2020). June on Daugherty Decl.; R. Mendenhall Decl. | 20; B. Gil Decl. Gil | 20; B. Decl. Daugherty R. Decl.; Mendenhall