Are California Police Departments Using a Blatantly Unconstitutional 'Order to Disperse'?
This was the order to disperse that Oakland police officers blared over loud speakers last Tuesday before firing volleys of tear gas, flash-bang grenades and "less lethal projectiles" at a crowd of around 500 people:
“I am (peace officer’s name and rank) a peace officer for the (name of jurisdiction). I hereby declare this to be an unlawful assembly, and in the name of the People of the State of California, command all those assembled at (specific location) to immediately disperse, which means to break up this assembly. If you do not do so, you may be arrested or subject to other police action. Other police action could include the use of force which may result in serious injury. Section 409 of the Penal Code prohibits remaining present at an unlawful assembly. If you remain in the area just described, regardless of your purpose, you will be in violation of Section 409. The following routes of dispersal are available (routes). You have (reasonable amount of time) minutes to disperse.”
I wrote about this from memory last week, but I grabbed the above text from the California Commission on Peace Officer Standards and Training's Crowd Management and Civil Disobedience Guidelines (PDF). So, reading this order before attacking a crowd is 'going by the book.'
Let's consider this text for a moment, and especially that phrase, "regardless of your purpose." Now, my purpose, as a working journalist, was to document a police action. I wasn't alone -- there were dozens of reporters on the scene.
I don't think one needs to be a constitutional scholar to understand that our "purpose" in Oakland that evening fell under the full protection of the First Amendment of the United States Constitution. We wouldn't be protected if we interfered with the police, but ordering us away from the area entirely and threatening us with arrest and potential bodily injury is blatantly, maddeningly unconstitutional. And this seemingly unlawful order is written right into the book.