When Police Should Issue Warnings Before Arresting

As I noted on the blog (here and here), last week and over the weekend, I attended Vegan Summerfest. My talks went well (I thought), but in today's essay I want to focus on a case I learned about during a side discussion. One of the best parts of just about any conference is the opportunity for informal conversations and the forging of connections. Today's essay is inspired by one such conversation with Dr. Faraz Harsini, whose remarkable personal story I urge readers to check out. Here I'll focus on one incident in which Faraz was involved, which implicates the following question: when should police give warnings before arresting someone?

A few years ago, Faraz and Daraius Dubash were participating in an animal rights demonstration in a public park in Houston. The demonstration was non-disruptive. It consisted of showing videos of what happens to animals used for food. The roughly half-dozen demonstrators did not approach passersby but did talk with anyone who approached them. They were then approached by police officers and told to leave--ostensibly because the park is "private," even though it is in fact a public park owned by the city of Houston. (A management company operates the park, but that doesn't render it private for constitutional purposes.) Dariaius is seen on camera asking the officers whether they are threatening to arrest him if he does not leave; the officer says that he's not threatening him; Dariaius then says that because it's a public park, he'll stay to exercise his right to free speech; at that point the officer arrests him.

I'll say more about the broader context below, but I want to focus on that moment--which you can watch at the very beginning of this video. Daraius makes clear that he will in fact leave if threatened with arrest but the police evidently want him to leave "voluntarily" in the sense that he is leaving just because he wants to leave and not under threat of arrest. What legitimate purpose is served by the officer not clearly informing Daraius that yes, he will in fact be arrested if he doesn't leave?

It's easy to deduce an illegitimate purpose for the officers' conduct: They worry that they do not have good cause to arrest Daraius. If they tell him that he'll be arrested if he doesn't leave and then he leaves, he might sue the police for unconstitutionally interfering with his right to free speech. But if they don't threaten arrest, then they can say (not all that plausibly, in my view, but with a bit more plausibility than in the situation where they do threaten arrest) that there was no free speech violation because Daraius left voluntarily.

I can't say for sure that that was the reasoning of the police. After all, they did in fact arrest Daraius and charge him with trespassing. The charges were dropped but not before Daraius spent 16 hours in jail. Meanwhile, Daraius and Faraz sued for injunctive relief allowing them to hold further demonstrations in the park. They asserted First Amendment and Fourth Amendment claims. So if the police were trying to avoid a lawsuit by not threatening arrest they failed. Even so, that doesn't mean they weren't using the strategy I've suggested. They might have figured it was worth trying to induce the protesters to leave without threatening arrest and, when that didn't work, proceeded to make the arrest.

I said above that this was an illegitimate purpose. Why? Because a premise of the strategy is that the police are uncertain whether they really have good grounds for making an arrest. Under such circumstances, a protester would also typically be uncertain whether there are good grounds for an arrest. A policy of not officially threatening arrest is designed to take advantage of the chilling effect on protected speech of a potentially unconstitutional law (or, as here, unconstitutional application of the law).

That is not to say that police must always give warnings before issuing arrests. If a police officer sees a burglar breaking into a home, the officer need not say to the burglar "you better abandon your burglary and leave or else I'll arrest you." The officer can instead simply arrest the burglar. But that's because in this example there's no ambiguity about whether the arrestee is engaged in conduct that justifies an arrest. Where it is unclear whether expressive conduct is illegal and/or it is unclear whether the law forbidding such conduct is constitutional, a clear warning of the form "stop it or you'll be arrested" seems plainly justified.

Although there is not a freestanding federal constitutional right to a warning before the police make an arrest, there is a requirement of due process notice. Where the status of property is unclear and the offense is trespassing, that will often require a warning. Moreover, under Texas law, where there is no clear marker that entering or remaining on property is forbidden, a person must be told to leave and refuse to do so. It's possible an officer could provide such notice without threatening arrest, as follows: "You are engaged in forbidden activity on private property and must leave. If you do not, you will be breaking the criminal trespass law." That would be adequate even though it does not include an express threat of arrest. But so far as I can tell from the video, that is not what happened.

Moreover, even if that were what happened, if someone who plausibly thinks he is exercising his free speech rights says that he'll leave but only under threat of arrest, I would think it is best practice for the police officers to say that they will in fact arrest him if he doesn't leave. The only reason not to do so is the illegitimate hedging strategy I described above.

Although I have described the police officers' view as uncertain about the legality of their request for Daraius to leave the park, in fact they should have been certain--certain, that is, that their request was unconstitutional. It was a public park and thus a public forum. Moreover, it appears that the attempted enforcement against the animal rights activists was content-based. The district court (adopting a magistrate-judge's recommendation) dismissed the lawsuit by violating the fundamental rule that the non-moving party's factual allegations must be taken as true.

The case is now on appeal before the Fifth Circuit, where Daraius and Faraz are ably represented by FIRE and the Law & Religion clinic of the University of Texas Law School. (The case raises religious freedom issues because Daraius's animal rights activism reflects his Hindu belief in ahimsa.) You can read their excellent appellate brief here.