Police officers block off Fourth Avenue in downtown San Diego amid protests over the killing of George Floyd in Minneapolis. / Photo by Adriana Heldiz

You can be chanting and marching for a cause one moment, and encounter tear gas, flash-bangs and rubber bullets from police the next.

That was the situation some San Diego protesters found themselves in on Sunday and again on Monday when police declared gatherings downtown unlawful. As protests sparked by the police killing of George Floyd and other cases of police brutality against black people continue with peaceful or violent ends, the distinction between a lawful and unlawful assembly bears scrutiny.

San Diego police made 113 protest-related arrests since Sunday, including 94 from Sunday night to Monday morning. The majority of those were for unlawful assembly violations, said San Diego Police Lt. Shawn Takeuchi, a spokesman for the department. He estimated five San Diego protests were declared unlawful in recent days, with police at times dispersing one group downtown while allowing another to proceed nearby.

Takeuchi said San Diego police only made the declarations after objects like “rocks, bottles were thrown at us. … Whenever that action started, we immediately announced an unlawful assembly.”

It wasn’t long after that police used force to disperse the crowd.

There’s “no standard time” that needs to be given for crowds to disperse and officers “may choose to immediately” use those tools, Takeuchi said. “Those instances were only done because our officers were being assaulted and to prevent injury to our officers, we had to deploy the gas or pepper balls, what have you.”

Takeuchi said officers announced recent declarations that protests had become unlawful “as best as we could. … We did the best we can using the PA system or blow horn. … I don’t know if our helicopter announced it. … I was actively trying to put it out on Twitter.”

How notice to disperse is provided, how much time is given before using force, who can give the order and why are just some of the things that can vary city to city, and protest to protest.

On the books, an unlawful assembly is defined in the state’s Penal Code as “Whenever two or more persons assemble together to do an unlawful act, or do a lawful act in a violent, boisterous, or tumultuous manner.” The courts have interpreted the law to mean “assemblies which are violent or which pose a clear and present danger of imminent violence.”

On the streets, the tipping point between a lawful and unlawful assembly can be a gray area – with broad discretion given to local law enforcement agencies who get to decide when to drop the hammer and order crowds to disperse under threat of force.

Can you march on roadways blocking traffic? Generally, no, but police may allow it.

“What is an unlawful assembly in San Diego might be a happy public gathering in San Francisco,” said Gary Gibson, a San Diego criminal defense attorney and professor of advanced criminal litigation at California Western School of Law. “Law enforcement is vested with immense discretion. They don’t have to arrest everyone for everything they see.”

Such discretion has been used by local law enforcement agencies in deciding whether to enforce public health orders during the coronavirus pandemic. Now, we’re seeing the same discretion used to clamp down on protests or look the other way when disruptions occur with varying degrees of severity.

“They (police) are given a lot of discretion to act in the moment,” said Michelle Luna Reynoso, a San Diego public defender and president of the Justicia Criminal Defense Association, which is recruiting attorneys to represent arrested protesters. “People do have the right to congregate. They have the right to voice their opinions and if they are angry and hurt at the injustices occurring, they have every right to do that within the realm of what the Constitution permits.”

Reynoso added that instances of violent interactions with police during the protests are “unfortunate because it brings about the same type of trauma experienced by George Floyd and the whole reason for the protest.”

In the event a gathering is declared unlawful, 2012 guidelines on crowd control by the California Commission on Peace Officer Standards and Training say police should ensure dispersal orders are heard widely, crowds are given exit routes and some time to leave before arrests for unlawful assembly are made or less lethal munitions are used to disperse crowds – like those used by San Diego police. Police are also told to specifically inform crowds force may be used against violators of the order.

Who in law enforcement has the authority to declare a protest an unlawful assembly isn’t set in stone.

Takeuchi said state law doesn’t dictate who can make the declaration, and arguably any law enforcement officer can, but “I can definitely tell you that at protests in the city of San Diego, it was a captain in the department making the decision,” he said.

“Usually someone from the command staff could make a determination,” said Tom Bussey, spokesman for the Oceanside Police Department. Bussey said the North County city of about 177,000 residents hasn’t had any problems with protests turning violent in recent days, including a group of 60 people that gathered near El Camino Real and State Route 76 Sunday.

Carlsbad police officials also said unlawful assembly declarations – which haven’t been made in that city – would come from a commanding officer.

“An unlawful assembly is declared by the Incident Commander,” wrote Jodee Reyes, spokeswoman for the Carlsbad Police Department. “The Incident Commander is usually a lieutenant but can be a sergeant. Generally, the declaration is made when unlawful acts begin to occur at an assembly.”

Alex Landon, a criminal defense attorney and professor of corrections and sentencing law at the University of San Diego School of Law, said, “My experience is, in order for something to be declared an unlawful assembly, it usually goes higher than one individual officer.”

Typically, there are some tell-tale signs a peaceful gathering could end in a police order to disperse. Failure to disperse may be charged as a misdemeanor if the order was lawful.

“It’s related to location and conduct,” said Gibson, the defense attorney. “Throwing rocks and bottles at the cops, that’s going to be called an unlawful assembly pretty quick. … 300 people praying, that’s never called unlawful.”

Blocking roadways is one way a protest could attract problems with police, but not always.

Monday’s youth-led protest was allowed to proceed peacefully by onlooking San Diego police officers, despite the disruption caused to traffic lanes as marchers moved from Balboa Park through parts of downtown San Diego, according to media reports.

“It’s unlawful to block a street, yes. Yes, it is, but that’s OK. We understand people want to be heard,” said Takeuchi, the SDPD spokesman. “As long as protests are peaceful, we will do the best we can to facilitate, but we cannot tolerate violence or destruction.”

That protest and another held in San Diego Tuesday stand in contrast to some protests in downtown San Diego and La Mesa over the weekend that escalated with police firing rubber bullets, flash-bangs and tear gas, and some people looting and setting fires, though the fact no fires were set in San Diego is a point of pride, said Takeuchi.

Bussey with Oceanside police also pointed to violence as a factor in determining whether to shut down a protest or use force.

“When people are all over the freeway and breaking into businesses and burning businesses and violating the law … that turns into unlawful assembly,” he said. “People understand what happened in Minneapolis was pretty unconscionable. If you want to do a march, get a permit from the city and do it where you aren’t blocking movements and destroying property. That doesn’t further your message at all … It just makes it worse.”

Bussey acknowledged getting a city permit to protest might be hard right now, though, with City Hall partially closed during the COVID-19 pandemic.

And the American Civil Liberties Union points out permits are not always required.

There are other protest elements complicated by the pandemic too – like identifying violent actors in an otherwise peaceful protest because face masks are commonplace and recommended.

“At a normal protest, during a non-pandemic time, if we have individuals coming to protests with masks on it would cause us alarm,” said Takeuchi with San Diego police. “It would indicate either they are going to deploy chemical agents… something that affects the senses, or they are prepared to receive that, because they know that’s how police tend to deal with unlawful assembly. We can’t look at individuals in the manner that we would before.”

“The problem is, if you’re in a big crowd and you’re peacefully protesting, you don’t know what the people behind you are doing,” said Gibson. “It may be very true that agitators are turning peaceful protests violent. And if you’re a peaceful protester, you’re just not in control of that and will get caught up in that.”

Isolated unlawful acts in a larger peaceful group should not immediately lead to an unlawful assembly declaration, though, according to the POST guidelines. Instead, police are urged to “Isolate, arrest and remove law violators as quickly as possible” and allow the protest to continue.

Takeuchi said it was “impossible” to isolate bad actors in the crowds downtown, but such isolation can sometimes be easier in open spaces.

“As a society, we haven’t developed the technology or tactics to be able to isolate our responses to those bad actors,” he said.

Not everyone believes it’s impossible to single out individuals behaving badly.

“Police may arrest that one particular individual without coming in with batons flying,” said Landon, the defense attorney and professor.

Still, despite the recent “use of flashbang grenades and tear gas reminiscent of years past,” in general, “more recently, I’d say law enforcement have been more tolerant,” said Landon. “I think they have to be concerned about people’s First Amendment freedoms. … As long as they aren’t causing problems, usually the police will protect those individuals’ rights to protest.”

But the tension for police is real.

“The sometimes competing goals of maintaining order while protecting the freedoms of speech and assembly stand as one of law enforcement’s greatest challenges,” the POST commission crowd control guidelines say.

Landon said police are forced to do a balancing test when protester rights begin to impact someone else’s rights.

“They don’t always just go in and arrest a bunch of people. They’ll usually try to talk to people and tell them they need to get back on the sidewalk,” he said.

Gibson said unlawful assembly declarations are usually used as a tool to stop the assembly rather than cite people. He said you’re more likely to see someone arrested for vandalism or assault on a police officer – usually. Gibson’s advice: “Don’t be violent. Don’t block traffic. …You get to yell, get to chant, get to march. If you’re moving, you’re less likely to get declared an unlawful assembly, unless you’re blocking the road.”

The American Civil Liberties Union guide to protesters’ rights says “shutting down a protest through a dispersal order must be law enforcement’s last resort. Police may not break up a gathering unless there is a clear and present danger of riot, disorder, interference with traffic, or other immediate threat to public safety.”

Reynoso with Justicia said court dates for protesters arrested recently are being scheduled for September and October. Some people arrested could see charges dropped, while others may see enhancements added because the conduct happened during a national and state emergency.

Tanya Sierra, a spokeswoman with the San Diego County district attorney’s office, said unlawful assembly violation charges have been prosecuted 25 times over the last 10 years.

An inquiry for similar statistics sent to the San Diego city attorney’s office was not immediately answered Wednesday.

“It will be interesting to see the body-worn camera from all these interactions,” said Reynoso, but California Highway Patrol don’t use the cameras, so actions on the freeway will likely not have footage.

As for any lessons learned, Takeuchi said more reflection about SDPD handling of the recent protests may come later, once a formal debrief occurs.

“It’s way too early. We are too deep in the situation right now,” he said. “We are still in the moment of national unrest and we don’t have the opportunity to take a step back and make those policy changes right now.”

Ashly is a freelance investigative reporter. She formerly worked as a staff reporter for Voice of San Diego.

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