After seeing video and news reports from the March 3rd women’s rights protest at the Capitol, I find the current trend of Virginia law enforcement agencies quickly declaring protests to be “unlawful assemblies”, and arresting protesters by force to be disturbing. Let’s look at Virginia Code § 18.2-406, which defines an “unlawful assembly”. To wit:

“Whenever three or more persons assembled share the common intent to advance some lawful or unlawful purpose by the commission of an act or acts of unlawful force or violence likely to jeopardize seriously public safety, peace or order, and the assembly actually tends to inspire persons of ordinary courage with well-grounded fear of serious and immediate breaches of public safety, peace or order, then such assembly is an unlawful assembly. Every person who participates in any unlawful assembly shall be guilty of a Class 1 misdemeanor. If any such person carried, at the time of his participation in an unlawful assembly, any firearm or other deadly or dangerous weapon, he shall be guilty of a Class 5 felony.”

On its face, the statute is itself vague, and relies on the subjective judgment of law enforcement officers on scene to determine what constitutes “unlawful force or violence likely to jeopardize seriously public safety, peace or order”, and what would “inspire persons of ordinary courage with well-grounded fear of serious and immediate breaches of public safety, peace or order”.

During my time in law enforcement, I came to understand that many police officers pride themselves in being able to “creatively” interpret definitions in code, and find ways to work someone’s actions and statements into a form to meet those definitions; just about everyone does it, and it’s not always a bad thing. When someone really needs to be arrested after having committed a crime, that skill can be a useful tool to bring them to justice.

The problem is, particularly in this day and age of statistics-driven policing, many police officers find it difficult not to apply the principle of “find a way to arrest them for something” to every situation, particularly when someone fails to immediately yield to their authority. In this case, it was probably a game to “find a way to declare this protest unlawful”.

Furthermore, regardless of what statements to the media may say, many line-level law enforcement officers welcome confrontation, especially when it involves the ability to use training and “toys” that aren’t often deployed; in this case, riot gear, chemical agents, and other crowd management tools. This is, in part, a byproduct of police training, as well as the fact that law enforcement officers do face danger of assault from suspects. When you are constantly trained to manage, and are faced with the threat of violent confrontation, it becomes difficult not to embrace it.

So, when you combine a vague statute, creative interpretations of what constitutes an “unlawful assembly”, and law enforcement personnel that are eager to use their toys against people who don’t immediately yield to their authority, you get what happened on March 3rd; peaceful protesters being declared to have unlawfully assembled, and arrested for exercising their right to peaceably protest and bring their grievances to the heart of their Government to be heard.

Having read many discussions about the March 3rd protest online, the common threads I have heard in support of police action consist of two basic arguments: first, that the protesters were blocking an entrance to the building, and second, that they failed to disperse when ordered to, so they should have been arrested. To these arguments I offer the following:

To argue that the assembly was unlawful because the protesters were blocking an entrance is absurd and naive. The “front” entrance of the Capitol is largely ceremonial, and not used on a daily basis. There are many other entrances and exits available to staff and the public both for routine business and emergencies. Furthermore, the group of protesters occupied a space less than one third the width of the Capitol steps, hardly causing a dangerous blockade of emergency egress.

Now, it is true that law enforcement on scene did declare the protest to be “unlawful”, and order the protesters to disperse. The question is whether or not they should have done so, and was doing so legal?

It is my belief that the spirit of §18.2-406 is to provide law enforcement with a mechanism to disperse violent, destructive crowds who genuinely threaten the safety of the public. It is the duty of our law enforcement officers to apply not only the letter, but also the spirit of the law when making decisions about arresting citizens, dispersing crowds, and other police actions where people may be deprived of liberty. In the case of the March 3rd protest, this was simply a matter of police personnel on scene being tired of the protesters’ presence, and waiting for any excuse to start making arrests and making the protesters leave. The decision to do so was wrong, the civil rights of the arrested protesters were undeniably violated, and a terrible message was sent to the citizens of Virginia: we don’t want to hear your voice, and we will use the police to make you go away.

The right of the citizens to assemble in the public square and demand that their government address their grievances can not, under any circumstances, be unreasonably violated. This is a pillar of our democratic process, and to limit the time, place, and duration of any group to do so is a direct attack on the Bill of Rights. The only valid reason that an assembly should be unlawful is if that group is actively, violently threatening the safety of people or property. Simple annoyance or inconvenience, however aggravating, does not an unlawful assembly make.