Sarah A. Soule
Christian Davenport

Newswise — 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 “good old days” of protester-police interaction. This is where many of us thought we were until the police response to the recent wave of protests in the US. As we have witnessed (perhaps most notably and most recently in Portland, OR and Kenosha, WI), the negotiated management model does not characterize how police and federal agents (and self-appointed armed citizens) have been dealing with protesters. Rather, it appears that the policing of protesters has returned to the 1960s style of escalated force. Or, possibly worse.

While the narrative of a singular direction from escalated force to negotiated management is generally accepted by scholars of protest policing, it belies broader trends of policing more generally.  While US policing of protest may have been kinder and gentler in the post-1970 period, there was also less street protest during this period. This is because many activists of the late 1960s and early 1970s were hindered by arrest, prosecution, and intimidation, or they went underground or abroad.  Moreover, it is during this that we saw dramatic and draconian changes in policing writ large. During this time, there was the creation and spread of police paramilitary units, a dramatic increase in spending on policing, the transfer of military equipment to local police forces, and increased rates of incarceration.  

The erosion of negotiated management was perhaps something akin to “punctuated equilibria” in that policing appeared to stay largely the same, but was undergoing glacial changes that can best be seen only in hindsight.  By most accounts, the shift happened after the terrorist attacks on September 11, 2001. Following these events, authorities quickly moved to monitor and curtail dissident activity throughout the US, significantly blurring the line between threatening and less-threatening individuals and organizations.  For example, there was extensive relaxation of the restraints placed on political surveillance, search and seizure, and arrest and detention.  Common conceptions of “domestic terrorism” were broadened to include any individual or group that employed 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 them 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. Whether the shift started in 1999 or 2001, the point is that the scholarly literature shows us how deeply entrenched these changes are now, and how difficult it may be to change protest policing in America.

With the current debate about what should be done about the police in the US floundering amidst Congressional disagreements, continued protests with unclear or varying objectives, and complex negotiations within houses of city government and police unions, we believe that (at a minimum) our nation must return to something more akin to negotiated management and the protection of our citizens’ right to free speech and assembly. While people continue to debate the right approach to policing writ large, we argue that an important first step is to focus on the policing of protesters, and to understand how negotiated management became the predominant practice in the 1970s, how it stayed in place for decades, and how we might follow those same steps to return to a more sane manner of protest policing.  We don’t view this as a defeat of the deeper changes to policing being pursued by some, but we do see this essential to protecting democracy. 

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. Like the period preceding the original switch to negotiated management, there has been mass mobilization, which has received media attention and widespread support of allies. That said, support for BLM is waning, which might be attributed to the purposefully leaderless and organizationally fluid BLM coalition, and the negative media attention to some of the tactics used. Moreover, the coalition may have difficulty sustaining itself as we move into the winter, a historically bad time for street protest. 

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. That said, the decisions may not go the way that most believe, or the way they went in the early 1970s. 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 who wins the next election as well as how thorough elected officials will go with their analysis. 

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, then the words of the aggrieved and grieving should inspire us all to replace these leaders with ones who have the will and capacity to do so.