On Monday night, members of DC’s Metropolitan Police Department corralled protesters at 15th and Swann streets, Northwest, and refused to let them leave.
Cops have protested boxed in at 15th and Swann. One threatening to pepper spray us. Way more cops tonight th an last night. pic.twitter.com/EQsne0Gy7U
— Stephanie Mencimer (@smencimer) June 2, 2020
Some of the protesters escaped into a nearby house, where they stayed the night. The story may not end there, however, because the controversial practice of containing protesters in this manner may violate DC law.
Probably the most famous local incidence of “kettling,” or “trap and detain,” as the practice is also known, was in 2002, when the DC police used it to corral and arrest about 400 people at Pershing Park during anti-globalization protests. Protesters and people who’d just happened through the park were hogtied, held for hours, and told, incorrectly, that they could only leave if they paid a fine rather than accept a citation.
The city’s Office of the Corporation Counsel declined to prosecute a single person who was arrested in the operation, and numerous lawsuits ensued, with the District on the hook for $11 million in settlements by the time the last one was settled in 2016, a figure that does not include millions of dollars in the city’s legal costs. A scathing report by the DC Council’s Committee on the Judiciary found that the arrests were wrongful, and that the police botched their investigation of the incident. Trap and detain tactics “should never be used on nonviolent demonstrators or in the absence of the potential for unlawful activity,” the report said. “To do so is a violation of current MPD policy and is arguably tantamount to, at best, disruption of individuals’ First Amendment rights to demonstrate and, at worst, false arrest.”
Nevertheless, the police employed kettling during protests on Inauguration Day 2017, which was among the techniques that led the ACLU to sue the city a few months later, alleging that cops violated the protesters’ constitutional rights and DC law, a case that is ongoing.
The 2005 First Amendment Rights and Police Standards Act all but prohibited the practice “except where there is probable cause to believe that a significant number or percentage of the persons located in the area or zone have committed unlawful acts.” That clause opens the door to the department continuing to use the tactic: for instance, it could argue that the people it kettled were apparently in violation of the mayor’s curfew order on Monday.
Peter Newsham, then the police department’s assistant chief, ordered the Pershing Park arrests. In 2017 he became DC’s police chief after serving for more than a year as acting police chief.
A spokesperson for the DC police has not yet replied to a request for comment.