Mimesis Law
20 October 2021

Blasting Standing Rock Protesters With Freezing Water, Shooting Rubber Bullets Is Probably Illegal

November 29, 2016 (Fault Lines) – As another Thanksgiving passes with vociferous and highly uninformed debates across the nation, perhaps no topic better encapsulates the war between neo-liberal hipsters and their racist uncles better than the Dakota Access Pipeline protests.

While there are numerous issues at play, one simple question sticks out: has the police response to the protests been appropriate?

One of the most contentious spots in the protest is Backwater Bridge on state Highway 1806, which serves as a main access point for protest sites on the pipeline route. In an effort to prevent people from getting to the protest site, the police closed the bridge on October 27th and put up barricades to prevent crossing.

On November 21st, a group of protesters went to the bridge, to either remove barricades or, if the police are to be believed, “attack” law enforcement in some unspecified way.

In response to the protesters attempting to push past the blockade, the police used “tear gas, rubber bullets and water hoses” to get the crowd to disperse. Of course, this being North Dakota, the temperature at the time was well below freezing. Video of the action shows a group of people huddling behind makeshift barriers, being shot with water cannons, and tear gas. Protest groups claimed numerous injuries from these actions.[1]

Regardless of how one feels about the protest itself, one thing is pretty clear. The force used on the protesters is unlawful and excessive.

The Fourth Amendment permits law enforcement officers to use only such force as is “objectively reasonable” under the circumstances.

When determining whether the use of force was objectively reasonable, the first step is to assess what kind of force we are talking about. Obviously, a police officer shooting someone is different than one yelling at someone. Along the continuum of force, “rubber bullet[s]” are pretty serious business, because they have the capacity to “cause grave physical injury.” Pepper spray, (actually olesoresin capsicum aerosol, which is referred to as “OC spray” by law-enforcement para-military types), tear gas, and other chemical agents, are lower on the continuum, but still have the well-recognized capacity to hurt like hell and cause temporary physical harm.

Second, we have to balance the type of force against the need for force. A person can resist law enforcement actions either passively or actively. Passive resistance is, like it sounds, frustrating police action through inaction, like going limp when they are trying to arrest you, or covering your face with your hands while they spray you with OC spray.

Active resistance is when you physically fight back, like shoving the police or hitting them. Generally a police officer cannot use physical force that has the capacity to cause injury against someone who is passively resisting.[2] For example, if someone is resisting a lawful arrest and he goes limp and refuses to stand up on his own, the police can probably grab his arms, handcuff him and carry him to the police car, but they can’t hit him with their fists to get him to cooperate. In the context of crowds, when police order a crowd to disperse and the crowd doesn’t, this is passive resistance. That is, at least, until someone does something violent against law enforcement.

Along these lines, “[h]igh-pressure water hoses, tear gas, and billy clubs, though legitimate forms of control in certain circumstances, become instruments of brutality when used indiscriminately against a defenseless” people. Officers generally can’t fire rubber bullets at people who do not pose an immediate threat of serious injury to himself or someone else. Similarly, an officer can’t spray someone in the face with pepper spray just to overcome “passive resistance” from an arrestee, even when a whole crowd is passively resisting. This means that in the context of protests, officers can’t shoot someone with a rubber bullet for not dispersing, and even the use of OC spray is limited to situations where it is necessary for safety, not just dispersing a crowd.

If we look at the video we can see passive resistance met with illegal active force. The officers, who vastly outnumber the protesters, are circled around a small group of people huddling behind pieces of plywood and plastic in unlawful defiance of police orders to stop trespassing and/or disperse. In response, the police can be seen blasting them with water cannons in freezing temperatures, shooting them with tear gas and, by many accounts, firing rubber bullets at them.

The justification given by the police was to try to keep the protesters from “attacking” them, but at the point the encounter progressed to the one seen in the video, the only thing the protesters were doing was passively occupying the bridge. The force used by the police was easily capable of causing serious injury or death, and, constitutionally needed greater justification than just getting the protesters to leave.

This is all troubling enough, but it is worth keeping in mind that this is what is happening while the world is watching. One might reasonably suspect that the protesters are not exaggerating when they claim that the actual instances of force are even worse.

[1] The stories diverge significantly on some points. One woman was injured in an explosion at the protest site; protesters claimed that it was from a concussion grenade used by law enforcement, while law enforcement said it was from an improvised explosive device made by the protesters. For present purposes, let us stick to the facts not in dispute.

[2] This is all highly fact-dependent, so don’t send me e-mails about how unfounded this generalization is. There may be circumstances where the use of physical force against a passive detainee is deemed justified.

Main image via Shanna Merola

2 Comments on this post.

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  • Donald
    29 November 2016 at 7:48 pm - Reply

    [1] Come on Caleb, I know you’re smarter than that.
    This is not an IED crowd, this isn’t even a firearm crowd, whereas American Law Enforcement has an established track record of misusing explosive toys that they got from the 1033 program.

    Don’t legitimize their cover story by repeating it.

  • Ahcuah
    2 December 2016 at 3:57 pm - Reply

    Yes, but is it illegal if no prosecutor files charges?

    (Kind of like the sound of a falling tree in a forest . . .)