Characteristics of strategic incapacitation
US police agencies retooled their approach to protest events through a back and forth process of responding to transgressive tactics employed by activists then readjusting their own response guided by the new penology framework of risk assessment (Gillham and Noakes 2007; Oliver and Myers 2001). Between the Seattle protests in 1999 and the terrorist attacks in September 2001, the contours of the strategic incapacitation approach to protest policing began to emerge. That process would only intensify in the decade since the 9/11 attacks as strategic incapacitation has become an increasingly common strategy employed in the policing of large demonstrations.
The primary goals for police in this new era are to preserve security and to neutralize those most likely to pose a security theat. To reach these ends strategic incapacitation emphasizes the application of selectivity whereby police distinguish between two categories of protesters – contained and transgressive – in order to target those perceived most likely to engage in disruptive activities. Contained protesters, often referred to by police as ‘good protesters’ are generally known by police, use conventional and legal tactics, negotiate with police, make self-interested demands, and are generally older. By contrast protesters considered ‘bad’ or transgressive articulate more abstract demands, use unpredictable and often illegal tactics, do not negotiate with police, and are generally younger (Tilly 2000).
The central characteristics of strategic incapacitation are identifiable by comparing it to prior strategies on the five dimensions of policing discussed earlier, plus the addition of three other dimensions needed to fully capture how strategic incapacitation differs from previous protest policing strategies. Table 1 consolidates these differences. For each of these dimensions, I contrast the prior strategies with strategic incapacitation and use an illustrative case to show how police are now employing the latter when managing mass demonstrations they anticipate will be unpredictable, disruptive and pose a possible security threat.
| Characteristic/dimension | Escalated force (pre-1970s) | Negotiated management (1970s–1990s) | Strategic incapacitation (current in United States) |
|---|---|---|---|
| |||
| First Amendment rights | Ignored | Stated top priority | Selective |
| Toleration of disruption | Low | High | Selective |
| Communication | Low | High | Selective & one-way |
| Use of arrests | Frequent | Last resort | Selective & proactive |
| Use of force | High | Last resort | Selective & less lethal |
| Surveillance | Moderate | Low | Extensive & real time |
| Information sharing | Moderate | Low | Extensive, cross agencies & media conscious |
| Controlling space | Localized & reactive | Localized & proactive | Selective, extensive & proactive |
First Amendment rights
During the escalated force period police tended to ignore First Amendment rights of all protesters. In contrast, during the negotiated management period, police stated that their highest priority was to respect the First Amendment even for those that expressed unpopular messages (McPhail et al. 1998). Now, when applying strategic incapacitation police openly declare that only protesters who agree in advance to engage in the permitting process and follow police-determined guidelines will be accorded protection of their rights to free speech and peaceful assembly.
For example, at the request of Miami police, just days before the 2003 Miami Free Trade Area of the Americas (FTAA) ministerial the city commission passed an ordinance prohibiting the assembly for any purpose of eight or more people in any public space for more than 30 minutes without having previously obtained an official permit. City officials openly acknowledged that the ordinance was passed to deal with the thousands of participants expected for FTAA protests (Fernandez 2008). Other examples include policing during the 2004 and 2008 Democratic National Conventions, held in Boston and Denver respectively. In both locales police promised only to protect the rights of protesters willing to confine their political speech to pre-established ‘free-speech zones’ (Baard 2004; Cardona 2008; Klein 2004).
Tolerance for community disruption
When applying the escalated force strategy police usually refused to allow disruption tolerating only occasionally the most polite, orderly forms of public dissent. Anything more was seen to be appropriate for police intervention. In contrast, the negotiated management strategy allowed for community disruption so long as it was prearranged through the permitting process. During pre-event planning police and protesters decided together on the ‘place, time and manner’ of protests including the use of symbolic civil disobedience (McPhail et al. 1998). With strategic incapacitation police now selectively determine in advance the locations, times and behaviors that will be tolerated. The only option available to protesters who wish to engage in activities that will be tolerated by police is to follow unilaterally and pre-established guidelines, rather than pre-negotiated and mutually agreeable ones. Any deviation from such guidelines results in the threat that police will not allow the protest event to occur at all.
Police response to a large anti-war rally and march planned to occur in New York City in February 2003 illustrates this point. United for Peace and Justice (UFPJ) sought to secure a parade permit for 50,000–100,000 people to start with an opening rally and then make a round trip march for several blocks past the United Nations headquarters before returning to the original rally point. After several failed negotiations the New York Police Department (NYPD) and the mayor informed UFPJ organizers that no march would be allowed anywhere in the city. Anti-war demonstrators would only be allowed to rally at Dag Hammarskjold Plaza near the United Nations building. UFPJ organizers challenged in court the restriction of their First Amendment rights arguing that the city had approved the forthcoming Saint Patrick’s Day Parade and that in the past large political marches had passed by the UN without incident. The NYPD police chief responded that large cultural celebrations were carried out by “known groups of participants, and did not involve any rally at the end of the march” (Dunn et al. 2003, 4). The NYPD indicated that abstract concerns about potential terrorism influenced their decision to ban the UFPJ march even though no intelligence suggested that it posed any actual terrorist threat. Agreeing with the police the judge concluded that the march posed a security risk. Thus, even though UFPJ had negotiated in good faith for several months with the NYPD, in the end, they were forced to settle for a rally in a location specified by police, not in a rally and march of their choosing (Dunn et al. 2003).
Communication
Under the escalated force strategy, police refused to formally communicate with protesters before or during demonstrations. Thus, police often misinterpreted unfolding events which led to their increased and sometimes excessive use of force. The negotiated management strategy used the event permitting process to adopt open, two-way communication between police and protesters in order to mutually orchestrate events including the negotiation of unexpected details arising during events. Police viewed the two-way communication as necessary both to minimize disruption and to protect demonstrators First Amendment rights (McPhail et al. 1998).
Current practices using the strategic incapacitation strategy blend elements of prior strategies. With protest groups willing to seek permits, police now use a selective one-way communication process to inform organizers what protest activities will be allowed. This is a substantial departure from the two-way negotiations and cooperation characteristic of negotiated management. Under strategic incapacitation police often refuse to communicate at all with possible or actual transgressive protesters except to issue commands once protest events have already begun. For example, during the first post-9/11 anti-war protests occurring in Washington, DC at the end of September 2001, police refused to talk directly with several hundred protesters and bystanders. The group which included a few dozen self-proclaimed anarchists had been corralled by the police into a large pen outside the World Bank and International Monetary Fund headquarters after engaging in an unpermitted march from the Capitol. Police had driven the crowd into this enclosure of portable barricades which abruptly ended the march. After 2 hours of detention, police conveyed the terms under which protesters would be released to a neutral third party of legal observers and not to the detained protesters (Noakes et al. 2005). Similar corralling and refusal to communicate with selected protesters has occurred at many other events (e.g. Boghosian 2004, 2007; Vitale 2005, 2007), further illustrating how police communication has become substantially more one-sided and authoritarian than had been the case with negotiated management.
Extent and manner of arrests
The role of arrests in strategic incapacitation offers a sharp contrast from negotiated management under which police showed a great deal of restraint, used arrests as a last resort, and then only arrested individuals who had violated laws. Sometimes the arrests were even pre-arranged during earlier negotiations to allow for symbolic and orderly expressions of civil disobedience (McPhail et al. 1998). Under strategic incapacitation, arrests are selectively applied to neutralize known or suspected transgressive actors often times before any crimes are committed. Preemptive arrests neutralize both individuals and organizations whose actions police cannot predict with certainty. Such arrests and detentions are frequently made without gathering evidence and with the intention of dropping charges after activists are released from custody, usually just before the 24 hours statutory deadline for charges to be filed (Gillham and Noakes 2007; Noakes and Gillham 2006).
There are many post-9/11 examples of this occurring (e.g. Boghosian 2004, 2007; Committee of the Judiciary 2004; Fernandez 2008; Noakes and Gillham 2006).One illustrative case occurred during the 2003 FTAA protests in Miami, where police not only pre-emptively arrested perceived transgressive protesters, they also arrested scores of union members and student activists walking to permitted events, as well as credentialed reporters and curious bystanders. By all indications most of those arrested were unaware that they had violated orders to disperse, failed to obey a lawful command, or violated the city’s new anti-assembly law passed just days before the protests. Bails were set high as a further way to keep those arrested off the streets. After being detained overnight most were released with all charges dropped (ACLU 2005). Such pro-active policing detains potentially disruptive actors from protest situations and sends a message to all others that regardless of their actual actions they are targets for arrest if they fit the profile of a transgressive protester.
Extent and manner of using force
Under the strategy of escalated force police relied on spectacular shows of force that quickly escalated and often turned brutal and occasionally fatal. Frequently, police used force indiscriminately against both violent and non-violent protesters as an alternative to arresting people. By contrast, in negotiated management, the use of force was the tactic of last resort and even then was applied proportionally to threats displayed, and only at those clearly breaking the law (McPhail et al. 1998).
Under strategic incapacitation police have routinely used force selectively against perceived or actual transgressive protesters. Less-lethal weapons such as tear gas, pepper spray, Tasers, rubber bullets, wooden missiles and bean bag rounds are now the weapons of choice. They are less likely to maim or kill, although they have caused serious injury and death. Evidence suggests that police use these weapons as a means to temporarily incapacitate potentially disruptive protesters and repel others away from areas police are trying to defend such as entrances and exits to secured zones (Noakes and Gillham 2007). These tactics were proactively used during the 2000 World Bank and International Monetary protests in Washington, DC and have since been refined and used in subsequent US protests (ACLU 2005; Boghosian 2004, 2007; Fernandez 2008; Narr et al. 2006). Case in point is the 2009 G20 protests in Pittsburgh where police used tear gas, pepper spray and sound cannons that emitted a painfully loud noise in order to disperse people assembled outside of the temporary fence surrounding the G20 gathering (ACLU PA 2010; Urbina 2009). In this and other cases, police appeared to pre-emptively use non-lethal force to neutralize threats, perceived or actual, posed by transgressive protesters. Quite often bystanders and contained protesters acting within the limitations of their protest permits were also incapacitated as the effects of such non-lethal weapons spilled over beyond their intended targets (Gillham and Marx 2000, 2003; see example, AFL-CIO 2003).
At this point an observer might conclude that police attempt to use negotiated management with contained protesters and escalated force with transgressive ones. That police are using a new strategy of strategic incapacitation becomes clear when three other tactical dimensions on which police now rely are included in the analysis.
Use of surveillance
Under escalated force police utilized surveillance, often by means of infiltration or informants, to gather intelligence that identified influential or radical individuals and groups and their organizational affiliations. They also surreptitiously compiled data on influential activists regarding personal friendships and extra-marital affairs. Less detailed information such as current address, organizational memberships, and events attended was collected on larger populations of less vital activists and movement sympathizers (Boykoff 2007a; U.S. Senate 1976). The information gathered from these different sources was then used “to disrupt or discredit the activities of groups and individuals deemed a threat to the social order” (U.S. Senate 1976, 1; see too Marx 1974, 1979; Powers 1987). When using negotiated management police relied much less on surveillance and instead used the event permitting system to gather information directly from protest organizations themselves (Gillham and Noakes 2007). By contrast, surveillance is used extensively in current applications of strategic incapacitation with some similarity to escalated force but also with some pronounced differences to the previous strategies.
Ascertaining the extent of police surveillance currently remains difficult given the level of secrecy surrounding its use. Nevertheless, patterns of police behavior are becoming visible. First and similar to escalated force, police collect extensive amounts of information on activists and advocacy groups between protest events. Most often surveillance activities are covert such as monitoring activist websites, joining in discussion lists (Miami Police Department 2004; Narr et al. 2006) or tracking activists over long distances as they travel from home to protest events (ACLU 2005). Less often it takes overt form as when activists are questioned in their homes. Most controversial perhaps are covert efforts to infiltrate groups, which police appear to be doing on a frequent basis (ACLU 2010; Boghosian 2007). For example, between 2003 and 2006 local police and sheriff deputies in several California cities infiltrated and spied on anti-war, anti-police brutality, and union groups (Boghosian 2007; Schlosberg 2006). Much of the information was gathered for unknown reasons, yet police acknowledged using some of the information to prepare for protest events being planned by the organizations (Schlosberg 2006).
Second, police now collect large amounts of information during protest events which contrasts sharply with the routine application of both the escalated force and negotiated management strategies. Under escalated force police surveilled activists during events using simple visual observations made by officers on the streets as a way to identify leaders and provocateurs (Stark 1972). With negotiated management police used surveillance sparingly during events since the terms of protester actions had been negotiated in advance. There was little need for an elaborate surveillance system when the primary duty of police during events was to direct traffic away from demonstration routes. Under strategic incapacitation police now rely on the extensive use of surveillance during events that entails the collection of both real time and static information by officers in the street and remotely. Real-time information has until recently been available only via radio communications routed through dispatch. Today, real-time surveillance benefits greatly by technological changes that allow for collection of an almost unlimited number of images and sounds not filtered through the officer in the field (Marx 2002). Real-time information is used most often to alert law enforcement to locations where disruptive protest activities are occurring. Thus, closed circuit TV cameras (CCTV) are often set up outside of police designated ‘no-go’ zones and legally sanctioned free-speech zones. Further the authorities now align march routes with pre-existing CCTV infrastructure and supplement CCTV with police videographers on rooftops, behind barricades, on scaffolding and in cherry pickers along demonstration routes. Real-time images are then sent back to a central command center where decisions to allocate necessary officers in the field are made including the deployment of police ‘flying squads’ in order to neutralize or incapacitate unruly or potentially unruly protesters (Fernandez 2008; Gillham and Noakes 2007). Static information is collected in similar ways as is real-time information, with police officers videographing and photographing events as they unfold. This information is later used as criminal evidence, for after action reports, and to provide favorable images to the media (Fernandez 2008; Narr et al. 2006).
Information sharing
During the era of escalated force, information sharing across agencies was limited because of the decentralized nature of the US criminal justice system (Gillham and Noakes 2007). When it did occur federal agencies shared information with state and local law enforcement agencies on a ‘need-to-know’ basis for carrying out joint operations. Larger police departments started their own intelligence units, accumulating files on thousands of people and organizations, including those involved in civil rights and anti-war movements. Less discriminating than the federal agencies, they often shared this information with other local police and federal agencies (Cahill 1962; Schlosberg 2006; U.S. Senate 1976). During the negotiated management period, cross agency information sharing on political activism declined as police stressed the protection of First Amendment rights across all but the most threatening groups and as the permitting process institutionalized and localized the information necessary to carry out protest events. In current applications of strategic incapacitation, police rely extensively on information shared across federal, state and local agencies. Further, they now selectively engage the media using sophisticated public relations tactics. Three examples illustrate some of the ways law enforcement share among themselves information collected on protest groups and protest events as well as their selective sharing of information with the media as a way to channel public perceptions of protest and limit public criticism.
First, between events information related to protest organizations is routinely disseminated from federal agencies to state and local police through weekly FBI intelligence bulletins (U.S. DOJ 2003) and through local FBI offices (U.S. DOJ 2010). Homeland Security offices disseminate information on protest organizations widely through regular threat assessment bulletins. For example, the Pennsylvania Office of Homeland Security releases a tri-weekly intelligence bulletin to all state and local law enforcement departments as well as the targets of protest such as natural gas drillers (Gilliland 2010). The bulletins focus on social movement organization activities across a spectrum of liberal and conservative issues (Davis 2010; Gilliland 2010), use language that frame protest as closely akin to terrorism, and assign a threat level assessment score to each potential action. Sources of information for these bulletins include the FBI and private-sector security companies specializing in anti-terrorism (Pennsylvania Office of Homeland Security 2010).
Second, extensive information is gathered and shared during actual protest events. For selected large gatherings referred to as ‘National Special Security Events’ multiple federal, state and local agencies work under the command of the US Secret Service (Narr 2006b) which establishes central command centers to collect, evaluate, disseminate and act on real-time intelligence. For example, during the 2004 G8 summit in Sea Island, Georgia, the Secret Service established a Federal Joint Operations Command Center electronically linked to the Multi-Agency Command Center operated by Georgia state and local law enforcement. Real-time intelligence garnered from the protests was simultaneously piped into each command center (McFarland 2006). Information gathered at such events informs After Action Reports and is disseminated widely to other agencies for subsequent ‘lessons learned’ exercises (Narr et al. 2006).
Police agencies have changed substantially how they use the media in the era of strategic incapacitation by taking a ‘proactive stance’ to actively manage the flow of information to the media in the period leading up to, and during large protests as a way to channel the content of media coverage and deter public criticism (Narr et al. 2006). Authorities’ engagement of the media is nothing new (Boykoff 2007a,b), but under strategic incapacitation the media is engaged much more consciously than in the previous two eras. Two tactics are illustrated here. First, public information officers working out of a centralized media information center consolidate and control the flow of suitable information released to the public and especially to media outlets preferred by the public information officer (Narr et al. 2006). Information released before events occur include claims by police that exaggerate both the projected size of forthcoming protests and the threat of violence posed by activists as happened with the 2003 FTAA protests in Miami (Fernandez 2008). Some scholars suggest that the fear generated among the public by such claims raise expectations that police will need to curtail civil liberties, use force, and make mass arrests in order to minimize violent protests and maintain order (Fernandez 2008; Starr et al. 2008). In contrast, information released during events by public information officers allows the media to ‘fully’ cover a protest without interviewing activists or ever directly observing the event. Second, police manage media portrayals of events by embedding reporters in front line police units, as was the case during the 2003 Miami FTAA protests (Miami Police Department 2004). Embedded reporters provided stories and photos capturing a ‘more comprehensive view than if the cameras are only on the protesters’ side’ (Narr 2006a, 69), yet only if they agreed to accept police determined restrictions on their coverage (Narr 2006a).
Controlling space
Under escalated force police used barricades and police lines to consolidate protesters into one place in order to make mass arrests or to punish them with force. Control of space was primarily reactive as police responded to confrontations as they occurred (Stark 1972). The negotiated management strategy used barriers as a way to guide protesters to the areas they had agreed during the permitting process would be off-limits. Police treated the rights of protesters to gather on par with the rights of protest targets to do the same, often allowing protesters to be within earshot of the targeted gathering (Gillham and Noakes 2007).
In current applications of strategic incapacitation, police decide in advance with no input from protest planners where demonstrations will be allowed and divide public and private spaces into three types of securitized zones. Hard zones are areas where targets of protest gather and are off limits to everyone without proper credentials and security clearance. Free-speech zones are areas where police decide in advance to allow legal protest to occur and are increasingly located far away from the targets of protest like a political convention. Soft zones are public spaces usually adjacent to hard zones where First Amendment rights are temporarily curtailed. These are the spaces where police and protesters are most likely to clash. Individuals entering soft zones are considered to be transgressive protesters whether they are in fact bystanders, journalists, or other. Their presence outside the designated free-speech zone provides police with a rationale for neutralizing them and curtailing their First Amendment rights.
Under strategic incapacitation police now rely on elaborate fencing systems to establish extensive hard zones around the targets of protest. For example, during the 2004 Democratic National Convention, Boston authorities erected a 7 foot high metal panel fence extending out several blocks around the convention center. The fenced perimeter established an extensive buffer of ‘defensible space’ accessible only through heavily fortified check points (MSNBC 2004). The interior perimeter of the fence was secured by uniformed Secret Service police carrying assault rifles and monitored in real-time by CCTV linked to both the local command center and the Homeland Security Center in Washington, DC (Baard 2004; Narr et al. 2006).
The free-speech zone for protests deemed legitimate by the police was set up several blocks away completely out of sight and sound of the convention center located inside the hard zone (Baard 2004; Harris 2006; Klein 2004). This ‘freedom pen’ as activist euphemistically called it resembled a portable minimum-security prison yard. Demonstrators who voluntarily restricted their protests to this space were completely enclosed inside a double-layered chain link fence mounted on concrete barricades, topped with razor wire and covered by overhead netting. Moreover, the zone was guarded by heavily armed police on raised platforms and by a real-time CCTV feed to the central command center (Baard 2004; Democracy Now 2004). The space accommodated approximately 1,000 protesters – only a fraction of those who planned to demonstrate – and according to police was necessary to ensure public safety (Democracy Now 2004; Klein 2004).
By contrast, protesters unwilling to use the free-speech zone congregated in the soft zone just outside the hard zone’s fortified perimeter, where they were treated as self-sorted and more immediate security threats. Some were neutralized through arrests which they ‘invited’ by gathering inside the soft zone. Doing so signaled ‘suspect’ intentions and justified their neutralization as apparent threats to security. While there were no reports that police used less-lethal weapons in Boston, there are several post-9/11 instances where police used these weapons to neutralize protesters and bystanders in soft-zones. Examples include the 2003 FTAA protests in Miami, the 2008 Republican National Convention in Minneapolis, and the 2009 G20 protests in Pittsburgh (ACLU PA 2010; Boghosian 2007; Hohmann 2008; Miami Police Department 2004).
