Dozens of college and university campuses experienced protests in April and May of 2024 due to the ongoing conflict in the Middle East. Many were peaceful, but some turned violent — and they engendered a wide variety of law enforcement responses. Some protests were met with dialogue and discussion between police, demonstrators, and campus leaders. Others, however, were met with force. At the University of Texas, for instance, riot-gear-clad officers mounted on horseback used pepper spray, flash-bang grenades, and impact projectiles to disperse the crowds. Many people were injured.
Do these injured protesters have constitutional recourse against the police? Typically, a person injured by a police officer’s use of force may assert a claim under the Fourth Amendment, which prohibits “unreasonable searches and seizures” by government officials. Recently, however, law enforcement officers have begun to assert that force used in such situations does not implicate the Fourth Amendment at all, because “dispersing” or “repelling” a crowd—even if by force—is not a “seizure” under the Fourth Amendment. And an increasing number of courts have been willing to accept that argument.1
Does this make sense? After all, the U.S. Supreme Court has long recognized that “the mere grasping or application of physical force with law authority” was sufficient to constitute a seizure.2 When a police officer raises and fires a “less lethal” launcher, or sprays pepper spray, or deploys tear gas to disperse a crowd and causes injury, hasn’t there been an application of physical force with lawful authority?
Some courts have recognized that the use of so-called “riot-control” or less-than-lethal weapons against persons in a crowd necessarily implicates the Fourth Amendment. For example, in Nelson v. City of Davis,3 officers were dispatched to an apartment complex near a college campus to break up what one participant called “the biggest party in history.” Officers fired pepperball guns4 to disperse a group of 15-20 individuals gathered in a breezeway. One round struck Timothy Nelson in the eye, permanently injuring him. The officers sought to dismiss Nelson’s subsequent lawsuit, arguing they were intending only to disperse the crowd. The Ninth Circuit rejected that argument and held that by purposefully firing their weapons in the area of the crowd, officers seized Nelson when he was struck. By contrast, in Dundon v. Kirchmeier, 85 F.4th 1250, 1254-56 (8th Cir. 2023), the Eighth Circuit held that it was not clearly established that individuals at a Dakota Access Pipeline protest in North Dakota were seized when struck by water cannons, bean-bag projectiles, tear gas, and rubber bullets fired by police officers attempting to disperse the crowd.
The Robins Kaplan Civil Rights and Police Misconduct Group recently defeated one of these “no seizure” arguments in a case brought by renowned Los Angeles Times journalists Carolyn Cole and Molly Hennessy-Fiske. They were covering protests in Minneapolis in the wake of George Floyd’s murder when they were pepper-sprayed and injured by Minnesota State Patrol troopers. Cole and Hennessy-Fiske sued, and the troopers sought dismissal on the ground that they were simply trying to disperse the crowd, and thus no seizure occurred. Chief Judge Patrick J. Schiltz of the District of Minnesota rejected that argument, in the process noting its absurdity:
[D]efendants’ theory would seem to empower police officers to use any level of force to disperse or repel a crowd—including fire hoses, police dogs, live ammunition, and even flame throwers. Because no “seizure” would occur, it would not matter for purposes of the Fourth Amendment whether the force applied was reasonable.
Cole v. Lockman, No. 21-cv-1202, 2024 WL 328976, at *5 (D. Minn. Jan. 29, 2024). It remains to be seen whether more courts will be willing to reach the same logical, common-sense conclusion.
1 See, e.g., Wilansky v. Morton Cnty., No. 1:18-cv-236, 2024 WL 1543020, at *5-7 (D.N.D. Apr. 5, 2024) (protester not seized when struck and burned by flash-bang grenade, destroying her forearm); Ratlieff v. City of Fort Lauderdale, No. 22-cv-61029, 2023 WL 3750581, at *8 (S.D. Fla. June 1, 2023) (protester shot in eye with 40-millimeter impact round not seized).
2 California v. Hodari D., 499 U.S. 621, 624 (1991) (emphasis added).
3 685 F.3d 867 (9th Cir. 2012).
4 Pepperballs travel “at a velocity of 350 to 380 feet per second, … break open on impact and release OC powder into the air, which has an effect similar to mace or pepper spray. Pepperballs therefore combine the kinetic impact of a projectile with the sensory discomfort of pepper spray.” Id. at 873.
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