As the Occupy movement continues to grow, so do the number of participant arrests.

Police have… As the Occupy movement continues to grow, so do the number of participant arrests.

Police have arrested more than 3,000 protesters nationwide since the Occupy Wall Street movement began on Sept. 17 and spread to cities across the country. Last month, police arrested more than 100 people in Boston and more than 700 protesters on the Brooklyn Bridge. This past weekend, police arrested 17 people in Denver because they had items such as a grill blocking the sidewalk.

The First Amendment guarantees the right to peaceful assembly, yet people are being arrested and, at times, pepper-sprayed. Lawyers and police explained the ways laws can govern protests — and sometimes restrict them.

“Reasonable” force

Last month, former U.S. Marine Scott Olsen was hit in the head by a tear gas canister launched by police during a protest in Oakland, Calif. Olsen’s injury has shifted some of the media focus on the movement recently to include opposition to police brutality.

Police have the authority to use force to arrest people who they suspect of commiting crimes, but there’s a limit to how much force they can use. Using excessive force in arresting an individual can violate civil rights, bring disciplinary or criminal action against arresting officers and cause serious injuries or death. The line between too much force and just enough becomes increasingly blurred when police deal with the unpredictable situations presented by large groups.

In the 1989 court case Graham v. Connor, the Supreme Court found that “the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.”

But Witold “Vic” Walczak, the Pennsylvania legal director of the American Civil Liberties Union, said officers “sometimes use more force than necessary.”

Walczak said fighting with the police will never end in a citizen victory, and police often follow a “use of force continuum,” meaning officers will gradually increase the amount of force used to detain a citizen in correlation to the amount of resistance presented by the citizen.

“Politely try to explain to the officer, but don’t fight on the scene,” Walczak said, advising that people adhere to the advice even if they feel their rights are being violated by police. In such cases, he urges students to subsequently relocate to a safe location and call the ACLU.

Pittsburgh Bureau of Police spokeswoman Diane Richard said a police officer could be dispatched to break up a protest if criminal activity, such as an assault, is taking place. She also said officers are given service training and police have “use of force protocols.”

Sgt. Eric Kroll from the Training Academy for the Pittsburgh Police said officers undergo five days of riot control training. This training includes arrest protocols, formations and the basics of handling a civil disturbance peacefully. However, when asked, Kroll declined to provide information on the tactics used.

Many condemned the amount of force used by police during the 2009 G-20 Summit protests, when Pittsburgh police utilized a Long Range Acoustic Device, or LRAD, in controlling crowds. This device was originally developed for use by the military and produces “harmful, pain-inducing sounds,” the ACLU website said. It was the first time such a device had been used on U.S. soil against U.S. citizens.

Riot police also shot OC gas canisters and rubber bullets to disperse the crowd.Many of the charges against arrested G-20 protesters were for “disorderly conduct” — the same charges being made against several of those involved in the Occupy movement.

Under the Pennsylvania Penal Code, disorderly conduct occurs when someone causes a “public inconvenience” by being reckless, engaging or threatening to engage in violence, making “unreasonable noise,” using obscene language or making an obscene gesture, or creating a “hazardous or physically offensive condition” that serves no “legitimate purpose.”

Walczak said disorderly conduct is often considered a “discretionary charge.”

“Police often use that to cite or arrest people who are doing things they don’t like or approve of,” Walczak said. “We see disorderly conduct misused by police for punishing people for engaging in constitutionally protected expression.”

Richard encourages citizens to exercise their First Amendment rights within the confines of the law.

“We encourage people to speak — it’s their right,” Richard said. “Everyone is granted their First Amendment rights as long as it is within the law, is peaceful and orderly.”

Knowing First Amendment Rights

On Oct. 15, the Occupy Pittsburgh protesters held a city-permitted march from Freedom Corner at the intersection of Centre Avenue and Crawford Street to Market Square Downtown. The march and following rally lasted for more than four hours and drew a few thousand protesters.

Pitt law professor Jules Lobel said the government can restrict the time, place and manner of a protest, as long as it provides alternative access to the areas requested. Lobel said the government can regulate protests for reasons concerning traffic, noise and security, but it can’t impose restrictions based on the content of protests.

“If you want to march down the street during rush hour, they can say you can’t,” Lobel said. He also said the government doesn’t have to grant protesters their specific requests, but it must give groups a “reasonable method of demonstration.”

Lobel said the right to assemble only applies to public property, and private property’s availability is up to the discretion of its owner. But, people can protest on “private property that takes on a public function or becomes intertwined with the state.”

The Occupy Pittsburgh group formed a base on BNY Mellon’s private property on Oct. 15 following its first march and rally, and has remained there since. Although the protesters have no constitutional right to be on the property, BNY Mellon has allowed them to stay.

“We are not blocking access,” said BNY Mellon spokeswoman Lane Cigna, referring to the protesters’ current occupation of BNY Mellon’s property, Mellon Green.

The First Amendment and the Constitution are only applied to the government and its property, so First Amendment rights are not granted to the protesters on Mellon Green.

Walczak said there are three types of government property: traditional, which includes sidewalks, streets and public parks; non-public forums, such as the inside of government buildings, and limited public forums, which are typically non-public areas that have been opened for civilian discussion, such as a county council meeting taking place in a government building.

In order to hold protests on traditional government property, a group must obtain a permit. But Lobel said that some demonstrations might not need permits. These demonstrations include small groups of people gathering on sidewalks to distribute leaflets. But if a group is large enough to block traffic, it needs to follow the permit procedure, Lobel said.

“If it is a major protest, work with the authorities and get a permit,” Lobel said, though he added that, at times, managing to do so is a struggle.

Nadine Brnilovich, special events coordinator at the Pittsburgh Bureau of Police, said the price of a permit is around $125, and any group planning on using the streets must have a permit. She said the city rarely denies permits.

“It’s not often that we’ve denied permits,” Brnilovich said. “We always try to compromise and accommodate to people.”

Walczak said the permit system has become “much fairer” after the ACLU’s 2003 legal dispute People Against Police Violence v. the City of Pittsburgh. The lawsuit asserted that “Chapter 603: Parades and Crowds” of the Code of Ordinances was “vague and overbroad” and “vests in City officials’ unbridled discretion to determine who needs a permit, who gets a permit and under what conditions.” After the lawsuit, Chapter 603 was altered. Currently, the city must approve or deny a permit within two days.

Despite any hardships a person or group might face, Lobel urges students and citizens to defend their rights.

“Know your First Amendment rights and assert them,” Lobel said. “It is an affirmative requirement, an obligation, that public areas are available for not just transit but for people to assert their points of view and protest.”