"Unlawful Assembly" And The Use Of State Power To Violently Break Up Protests
A law meant to be used against violent riots is almost always deployed against peaceful antiwar protests.
An unlawful assembly is the meeting together of three or more persons with the intent to disturb the public peace.
To constitute this offense, it must appear that there was common intent of the persons assembled to attain purpose, whether lawful or unlawful, by commissions of acts of intimidation and disorder likely to produce danger to the peace of neighborhood, and actually tending to inspire courageous persons with well-grounded fear of serious breaches of public speech. This intent or purpose does not need to exist at the outset.
If these persons take steps toward performing this forcible and violent execution, it becomes a rout. If these persons actually perform this forcible and violent execution, it becomes a riot.
Whoever participates in any riot, rout, unlawful assembly or affray, is guilty of a misdemeanor.
After a week of overwhelming state violence employed against student protestors, I thought it would be a good time to talk about the legal foundation behind the breaking up of the protest encampments at universities across the country.
The language in the Cornell definition strongly implies these laws were written to prevent riots—"acts of intimidation and disorder,” “forcible and violent execution,” et al. Unlawful assemblies in a nation with a guaranteed right of assembly seems, on its face, to be an oxymoron. While I am generally in favor of the loosest restrictions possible (because protest and assembly are ineffective without the ability to reach the target audience in government), I understand that, for purposes of public safety, some restrictions are reasonable. These are known as “time, place, manner” regulations. However, starting with the civil rights and antiwar protests of the 1960s, states began passing stricter laws regarding “unlawful assembly,” and as expected, the standards varied wildly and enforcement tended to only affect certain types of groups.
Alabama declared the Selma-to-Montgomery march by Dr. Martin Luther King, Jr, John Lewis, and other civil rights leaders to be an unlawful assembly. That led to the events of “Bloody Sunday” in 1965. The Vietnam War protests of 1966-70 were declared unlawful assemblies at various points, including Ronald Reagan’s decision to crush protests at the University of California-Berkeley (Reagan had run on and won the governorship in 1966, in part, because he promised to do so)1, the April 1968 occupation at Columbia (this is quite relevant, as you’ll see later) and the 1970 Kent State Massacre, where four students were gunned down by National Guardsmen without any just cause after the Guard was brought in by Governor Jim Rhodes of Ohio to disperse protests over the Nixon Administration’s widening of the Vietnam War into neighboring countries.
In each one of the above collegiate cases, administrations declared these unlawful assemblies after refusing to discuss, meet with, or listen to the wishes of protestors. From the start, then, the protests were infused with a greater sense of anger and grievance. The students did not always behave correctly or legally; by the same token, they were very much engaged in a struggle to stop unnecessary deaths in a war that was voluntary. The government plucked young men at random in the draft to go fight it, and in far too many cases, die in it. If you could be pulled out of your life in an instant and sent off to a war being fought for geopolitical reasons in a third country, you’d probably view protesting as something more than demanding change.
And now we turn to Columbia, where a week ago Tuesday the NYPD were called in by university president Minouche Shafik (in violation of university bylaws, it should be noted). This was the second time since her appearance before Rep. Elise Stefanik’s House Committee on Destroying Higher Education that she’d done so, wanting to look tough after a sustained pressure campaign by IDF veterans turned Columbia students/professors working in coordination with Stefanik. She’d already suspended hundreds of students, including Rep. Ilhan Omar’s daughter, and called in the NYPD a week before to perform the first clearance of the antiwar encampment. This simply led to a second, larger encampment and the occupation of Hamilton Hall by the most hardcore protesters amongst the students. Hamilton Hall was the site of the 1968 occupation, which was also broken up by NYPD on April 30, 1968, resulting in 720 arrests. At the time, the president, Dr. Grayson Kirk, reacted like Shafik did yesterday—’How could these kids make such a mess?’
Today, Columbia lionizes the moment and talks about how they shouldn’t have involved the police then. On Tuesday, when Shafik repeated Kirk’s mistake, called the NYPD in for a second time, and they proceeded to turn Morningside Heights in its entirety, not just the campus, into a barricaded enclave. Cops were stationed outside of the doors to housing facing campus, keeping everyone inside, even though these buildings were not part of Columbia. Armored ESU vehicles designed for dealing with terrorists or well-armed criminals were used to break into Hamilton Hall, doing far more damage to it than the students had. The NYPD used tear gas and tasers on the students, one was thrown down the stairs according to a social media video, and the journalism school (along with professional journalists), were locked into buildings by NYPD. The dean of the journalism school, Jelani Cobb, a respected New Yorker magazine writer, had been on MSNBC’s All In With Chris Hayes two hours ago defending the need to end the occupation of Hamilton Hall, but it didn’t protect him from the NYPD threatening him with violence when he intervened on behalf of the Columbia Spectator student journalists being let out to cover this story with immense consequences for their campus.
The same night, 200 pro-Israeli counterprotestors at UCLA that were paid for in part by Jerry Seinfeld’s wife, the cookbook author Jessica Seinfeld, and the billionaire reactionary Bill Ackman, went on a violent rampage against mainly sleeping Palestinian protestors in their tents. They marched in with the Israeli national anthem playing, and began throwing fireworks and tear gas into the tents. They charged in with sticks and began beating students. The students fought back as best as possible. Four reporters for the Daily Bruin, the independent student newspaper, were individually surrounded by these counterprotestors and assaulted. Magically, the police did not show up for two hours. No “unlawful assembly” was declared against the violent thugs who attacked the students.
The next night, though, the students, who had not been violent, were declared an “unlawful assembly,” and the LAPD stormed in with batons, flashbang grenades, and riot gear when students refused to leave. They cleared the encampment and destroyed the tents and other gear there. As is typical of police interventions, they destroy. They do not protect, even things that could go to good use, like cases of bottled water or cans of food for the needy. It was the most searing example of cui bono (Who benefits) from protection under the law. Not a single pro-Israel protest has, that I can find, been declared unlawful. Nearly every major pro-Palestinian protest has.
Perhaps the most egregious example in a long list of selective enforcement of “unlawful assembly” laws is what took place at the University of Virginia over the weekend. Protestors were camped out as they were in other places, the university threatened them on Friday with removal, but didn’t follow through. The reason may have been the weather (it was a torrential rainstorm that night) or it may have been that the policy didn’t actually say what the administration said it did!
Protestors had noted in their interactions with the administration that the policy didn’t prohibit them from camping out. The administration changed it on Saturday morning, and then claimed that it was always that, but the public-facing version was outdated. Considering there’s no provided documentation to support this, that statement falls flat. It also, again, begs the question why is there such a zeal to eradicate these protests. Changing your policy on a Saturday morning just so you can send in cops to beat up students and throw them out, and then cower when the public demands answers, is not standard behavior for universities, but it’s behavior that keeps occurring. The “there were non-students staying in these tents” excuse keeps showing up, but when the police arrest records are examined, the non-students are nowhere to be found, almost like it’s a red herring!
Just to add insult to the injury the First Amendment suffered over the past week, the House of Representatives in a widely bipartisan vote passed a bill that defines criticism of Israel as anti-Semitic. While based on the International Holocaust Remembrance Alliance’s “working definition” of antisemitism, the bill acts much like an executive order issued by Donald Trump during his term as president. That use of it, according to the man who wrote the definition, is a weaponization of the term and was never intended to be used against groups like Jewish Voice for Peace and Students for Justice in Palestine. I should note here, as well, that both of those groups have been banned from numerous colleges since October 7th, a deliberate effort to silence specific viewpoints. In Columbia’s case, their linkages to both the NYPD’s intelligence operation (one of many bloated departments in the NYPD, and the group who spied without warrants on NYC metro area Muslims for a decade after 9/11) and the Israeli Defence Forces make their actions incredibly suspect. For example, why does Professor/Commissioner Weiner have an NYPD liaison office in Tel Aviv? Why do IDF veterans have their own special support programs at Columbia? Why were the pro-Israeli protests allowed to go on unmolested?
The past week should be a clarion call for the people to make a wider push to roll back these laws on unlawful assembly. If these laws mean whatever those in power want them to mean at a particular moment, then we might as well be living at the whims of a monarch. A nation that touts its freedoms abroad is overly eager to suppress them at home whenever it exposes the policies of the powerful as being bereft of legality, morality, or both. If we, as the citizenry, value our rights, now is the time to keep standing up and not let thugs with badges dictate limits on those rights.
A two-year battle by then-Governor Reagan to suppress demonstrations culminated in the 1969 People’s Park Protest. A lot of university-owned land purchased via eminent domain in 1956 sat for a dozen years, with empty houses, before the school demolished them in February 1969. Students took it upon themselves to build a “People’s Park,” where they could have a place to freely debate and assemble that wasn’t as controlled as Sproul Plaza, the site of past protests. The students, aided by donations from local landscapers, began constructing a truly commendable location with grass, trees, flower beds, and more. The university, perhaps cowed by two years of fending off Reagan’s attacks on it, decided to reject this gift. Instead of accepting it, which would have pushed protests further away from the main parts of campus (and thereby contributing a more peaceable atmosphere for others) while also providing a beautiful park at no cost, they rejected it, suddenly announced it would become a soccer field, and fenced off the park.
The protestors, in turn, were incensed, and turned violent, throwing bottles and bricks at the police. The police started by beating protestors with nightsticks and then pulled shotguns and began shooting them. As protestors fled, numerous students were shot in the back. The police claimed they’d only used beanbag rounds, to which local doctors furiously provided shotgun pellets they’d removed from the backs and legs of students at area hospitals. The police then claimed it was necessary to use live ammo, a stance supported by Reagan. This led to a second confrontation where innocent bystanders were shot and/or killed, most notably James Rector, who was on the roof of a bookstore watching the fighting when a cop aimed up at him and shot him dead. Another man was blinded by a shotgun blast to the face, and over a hundred other people wounded. Reagan called in the Guard; ultimately, the University backed down and People’s Park survived, despite multiple attempts over the last thirty years to again develop it.