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Law Enforcement's Dangerous Double Standards on Protest

We're getting an up-close look at how law enforcement treats left and right protests differently. But the solution is protecting protest, not supercharging law enforcement.

Police officers take position to shoot tear gas at the demonstrators in Downtown Los Angeles on May 30, 2020 in protest against the death of George Floyd, an unarmed black man who died while while being arrested and pinned to the ground by the knee of a Minneapolis police officer. (Photo: Apu GOMES / AFP via Getty Images)

Police officers take position to shoot tear gas at the demonstrators in Downtown Los Angeles on May 30, 2020 in protest against the death of George Floyd, an unarmed black man who died while while being arrested and pinned to the ground by the knee of a Minneapolis police officer. (Photo: Apu GOMES / AFP via Getty Images)

If the images of armed white supremacists overrunning the Capitol on January 6 had receded to the back of anyone’s mind, Trump’s recently concluded impeachment trial has brought them front and center again. While the former president wasn’t formally convicted, the trial revealed the complicity of Trump and others in his circle in instigating a violent attack on Congress in a desperate bid to stay in power after losing an election. 

But there’s another story of complicity and politicized bias, revealed by the woefully ineffective law enforcement response to the attack, that merits continued attention. That story is now being explored in more detail, as leaders of the law enforcement response are called to testify before Congress.

Many courageous Capitol Police officers did their duty in the face of extreme danger, with a few of them paying for it with their lives. But unfortunately, there also were instances of open collaboration between police and the mob, for which several officers are under investigation. Even worse was the presence of active-duty and veteran law enforcement and military personnel in the fascist mob.

There’s a long history of law enforcement violence against left-wing dissent in the U.S.

The Capitol Police had been amply warned about the dangers of January 6, yet some officers reported they were told to prepare simply for a “normal"protest. As a result, they were easily overpowered.

This law enforcement response was in sharp contrast to the summer of 2020, when law enforcement agencies nationwide engaged in systematic violence against unarmed Black-led protests. Ironically, these protests were against the routine police murders of Black people. The police violence against the protests drove home the very point the protesters were making.

The militarized law enforcement response to Black Lives Matter protests in 2020 weren’t an anomaly. There’s a long history of law enforcement violence against left-wing dissent in the U.S., recently documented in a detailed study by researchers at Princeton and the Armed Conflict Location and Event Data project.

"Critical Infrastructure" Laws

Police violence is one aspect of this repression, but there are others.

Last year, my colleague Gabrielle Colchete and I authored a report on an important but lesser known legal tool many states are using to criminalize dissent—particularly against protestors fighting new fossil fuel infrastructure like the Dakota Access Pipeline. 

They’re called “critical infrastructure laws,"and they’re a key element of repression of left-wing protest in the U.S. today. 

These laws turn common peaceful protest tactics—such as blocking streets or chaining oneself to construction equipment—into felonies. And they make it a criminal conspiracy to plan these protests or train people to participate in them.

When we wrote the report last year, these laws were in place in 13 states. That’s now up to 14 with the passage of SB33 in Ohio this year. They’re likely to become even more widespread as concerns about climate change, air and water pollution, and Indigenous land rights intensify. 

There is no grassroots constituency clamoring for these laws. Instead, as we documented in our report, these laws were created by the American Legislative Exchange Council (ALEC), a pro-corporate bill mill, and shopped around to right-wing state legislators. The lawmakers who sponsor these bills typically receive large campaign contributions from fossil fuel companies and other polluting corporations and their trade associations and lobbyists.

The same pattern was repeated in Ohio. 

Ohio state senator Frank Hoagland, the lead sponsor of SB33, received more than $28,000 in political contributions in the most recent election cycle from the fossil fuel and utility industries, the main beneficiaries of the bill. This includes $7,500 from NiSource, $5,000 from Gulfport Energy, $3,500 from the Ohio Coal Association, $2,500 from ExxonMobil, and $2,000 each from EQT, Marathon Petroleum, and First Energy Corporation. 

A lobbyist for Marathon Petroleum testified in support of the bill in committee hearings, where he disclosed that a number of fossil fuel and petrochemical companies and trade associations were proponents of the bill. 

The list of witnesses in the hearings makes the top-down, industry-driven nature of the bill clear. More than 160 people testified against the bill, and the only supportive testimony came from the lead sponsor, a lobbyist, a corporation, three industry associations, and two water and sewer district associations. 

The communities adversely affected by the polluting projects these laws were designed to protect are often Black or Indigenous, with high rates of poverty and exposure to environmental toxins. We found this again and again in our research.

For example, the Bayou Bridge Pipeline in Louisiana, which benefits from the protection of Louisiana’s draconian “critical infrastructure"law, terminates in the highly polluted “Cancer Alley"region, which has a disproportionately Black population. The average poverty rate of the Black population in the Census tracts along the pipeline route is 27 percent, twice the national average.

In Minnesota, where several attempts have been made to pass “critical infrastructure"legislation, the Line 3 pipeline project threatens the traditional lands and wild rice harvesting grounds of Indigenous peoples. The average poverty rate of the Indigenous population in the Census tracts along the pipeline route is 37 percent, three times the national average.

These laws are clearly intended to allow powerful corporations to continue exploiting marginalized, politically powerless communities, by criminalizing the few remaining tools these communities have to fight back: peaceful protests and civil disobedience. 

Protecting the Right to Protest

Exposing the hypocrisy of law enforcement that coddles violent right-wingers while brutalizing protests against environmental injustice is essential. But we must be intentional about our desired outcomes.

It’s tempting to call for more state violence against the far right, or more government surveillance tools to disrupt their networks. But that would be dangerous and counterproductive. It would lead to more funding and weapons for law enforcement, diverting resources from critical community needs such as housing and schools. 

And, as our research on “critical infrastructure"laws shows, these weapons will inevitably be turned against more vulnerable communities and the left.

As for surveillance tools, these seem hardly necessary. Much of the planning for the attack on the Capitol occurred on public internet sites. Law enforcement agencies don’t need more surveillance tools—they need the political will to confront the far right.

The best antidote to law enforcement violence directed at Black-led protests against police killings, or Indigenous-led protests against oil and gas pipelines, is not to call for similar violence against the far right. It’s to enact legislation codifying the right to protest.

We have recommended several provisions for a protest bill of rights in our report, including demilitarizing law enforcement, banning the use of surveillance against protest attendees, banning the use of private security companies for policing, prohibiting the use of conspiracy charges in connection with protest planning activities, and importantly, disciplinary consequences for law enforcement officers who violate any of these provisions.

People are right to demand accountability for those who attacked our Capitol, as well as the politicians who put them up to it. But the lesson from the law enforcement double standards we witnessed in the Capitol attack is that we should prohibit law enforcement violence against all peaceful protest.

Basav Sen

Basav Sen

Basav Sen is the cli­mate jus­tice project direc­tor at the Institute for Policy Studies (IPS) and writes on the inter­sec­tions of cli­mate change and social and eco­nom­ic jus­tice. Pri­or to join­ing IPS, Basav worked for 11 years as a cam­paign researcher for the Unit­ed Food and Com­mer­cial Workers.

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