The widespread attacks by law enforcement against peaceful First Amendment demonstrators in the wake of George Floyd’s murder are deeply concerning as a matter of core constitutional law principles. But the fact that many “officers” spread across Washington, D.C., and other places lacked legible insignia indicating who they were and whom they work for borders on the bizarre.
Attorney General William BarrBill BarrJan. 6 committee chair says panel spoke to William Barr William Barr's memoir set for release in early March The enemy within: Now every day is Jan. 6 MORE explained, “In the federal system, we don’t wear badges with our name — I mean the agents don’t wear badges and their names and stuff like that, which many civilian police ... agencies do.” Like all of Trump’s closest cadre, recent history has shown that Barr’s words cannot always be trusted as accurate. So, are federal officers legally required to wear badges and, if not, should they be?
Somewhat astonishingly, there is no federal law requiring federal law enforcement to identify themselves to the public when they are conspicuously acting in their official law enforcement capacities. We’ve all heard of plain-clothes or undercover cops who routinely pose as private citizens for crime prevention and detection. The practice is legal, so long as the officer does not induce a person to commit a crime that the person wouldn’t have otherwise committed. That would be entrapment, which is illegal.
But the display of brute force in riot gear and no badges for purposes of intimidating First Amendment demonstrations is a different matter. The very presence of police officers dressed as police officers in the public square hinders the full exercise of certain constitutional rights — such as the right to free speech, free assembly and freedom of movement. People might alter legal behavior to conform to the police presence.
To take a simple example, a family visiting Washington, D.C., will likely stop in its tracks if it sees armed men blocking the steps to the Lincoln Memorial. If the family walks to the White House and finds droves of black-clothed officers with large, military-grade weapons slung over their shoulders, the same family might leave the city altogether — foregoing their rights to speech, assembly and freedom of movement in downtown Washington, D.C. The family’s reaction would be particularly swift if — as was the case with the George Floyd protests — they know that the government recently employed tear gas, batons, low-flying helicopters and rubber bullets on innocent civilians and members of the press who happened to be in an area that President TrumpDonald TrumpHeadaches intensify for Democrats in Florida Stormy Daniels set to testify against former lawyer Avenatti in fraud trial Cheney challenger wins Wyoming Republican activists' straw poll MORE wanted cleared to enable his photo-op in front of a nearby church.
The D.C. code requires that local police display “enhanced identification” when policing First Amendment assemblies, but federal officers aren’t bound by it. Federal regulations do allow Barr to deputize people to perform the functions of a Deputy U.S. Marshal, including “[s]elected officers or employees of the Department of Justice” and “[o]ther persons” he designates. The official website of the U.S. Marshal Service explains the importance of badge credentials as representing “official notice of agency powers” and “true authorization to perform assigned duties.”
Although Barr is not legally bound to publicly identify each member of his riot forces, he is ethically and normatively bound. The standards for the police published by the United Nations High Commissioner for Human Rights include “wear[ing] clearly visible identity badges to facilitate accurate reporting” of human rights violations by the government. It doesn’t take a policing expert to understand why.
America is a representative democracy in which people exercise self-governance. We do this by holding elected officials accountable at the polls and in the courts. Unlike private individuals, law enforcement officials have tremendous power over life, liberty and property. Regular people can’t put their adversaries in jail — that would be kidnapping.
Because it’s human nature to abuse power, we have courts that hear cases of police brutality and elections that properly place responsibility in the hands of elected officials ultimately charged with policing the police. But if we do not know the identity or employer of someone who is exercising police power, it becomes exceedingly difficult to hold that person and their elected bosses accountable.
Even worse, anonymous gun-wielding “police” invite vigilante copycats. Prior to the George Floyd murder, the nation was transfixed on the mounting deaths due to COVID-19 and the satellite protests over state stay-at-home orders, some by armed private militia members. Barr and President Trump irresponsibly pointed the finger at amoebic anti-fascist groups for the unrest, but the Department of Justice, thus far, has brought no cases against linked defendants. But more to the point, by threatening protesters with badgeless, federal-looking bullies, Barr is stoking the militant flame — not quelling it.
Keep in mind that the First Amendment binds all holders of government power — from the president down to a local town official. Under the Supreme Court’s construction of the Constitution, the state cannot punish speech in connection with public demonstrations unless the speech has gotten so out of control that it is about to cause injury. Strong emotions, political protest and the risk of violence are not enough.
History will not look kindly at the response by Trump and Barr to the First Amendment demonstrations in Lafayette Square; the efforts turned violent at their direction and with no documented escalation by the people both men swore to serve. The fact that Congress has never passed legislation requiring that the injured know who is at the other end of a federal gun barrel merely suggests that Trump — once again — has gone beyond where any White House occupant has gone before.
Congress needs to enact pending legislation that’s aimed at remedying this true blind spot in federal law enforcement standards. It should do it immediately so that the next time Trump jousts with the First Amendment through police violence, the people are better protected.
Kimberly Wehle is a visiting professor of Law at American University’s Washington College of Law, and author of the book "How to Read the Constitution—and Why." Follow her on Twitter @kimwehle.