Last Saturday night, the Tucson Police Department dispatched about 140 officers in riot gear to the scene where a crowd of  what police said was “several hundred” people had gathered on University Boulevard during the University of Arizona’s nail-biting loss to Wisconsin.  It isn’t clear yet how and when trouble started, but it escalated after police ordered the crowd to disperse.

The Tucson Police Department described that tactic  in a news release titled “Unlawful Assembly.” It said in part, “A dispersal order was given to the crowd numerous times in both English and Spanish, telling the crowd that the Tucson Police Department had declared their gathering to be an unlawful assembly and to disperse from the area immediately.”

But what, exactly, is an “unlawful assembly,” and how can authorities use that legal concept to basically circumvent one of the most fundamental guarantees in American society: the right to assemble addressed in the First Amendment of the United States Constitution, which reads in full:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Of course, the word “peaceably” is the hitch, experts point out.

The First Amendment says people have the right to peaceably assemble.  Arizona law states that  officers have the right to disperse an “unlawful assembly.”  But at what point does an assembly become “unlawful?” The question is being asked in Tucson, but also could be expanded to pertain to celebrations or political protests anywhere. For example, the beginning of the Encyclopaedia Britannica entry on “unlawful assembly” says: “The extent to which a government penalizes disorderly assemblies often reflects the political value that it places on the right of assembly.”

Videos, and accounts of what happened from people who were at the scene, have raised questions about legal issues, including on what ground police decided that they had the right to declare the scene unlawful, when they did that, whether they used excessive force in responding to a crowd, and whether the fact of a large police response itself, with officers in riot gear who had been training for weeks in anticipation of a “riot,” might have actually contributed to tensions in general and drunken unruliness among a small number of people in the crowd.

Bill Richards, an attorney with  Baskin Richards, a law firm in the Phoenix area, said facts of the specific case are important in determining whether police have the right to declare an assembly unlawful.

“The right to assemble is not an absolute right. It doesn’t mean that you can assemble for any purpose whatsoever,” Richards said. “These are very complicated legal issues because they put at odds two of some of the most important rights in our society” — a right to assemble and a need for authorities to ensure public safety, including the rights police have to protect themselves.

Police say they responded correctly. What started as a celebration on University Boulevard Saturday quickly grew violent, said Pete Dugan, a sergeant in the Tucson Police Department’s public information office. As the crowd spilled into the street, including many from bars, officers began forming a line and turned on their sirens hoping to get people’s attention and, at some point, ordering them to disperse.

According to Dugan, what the officers got instead were bottles, cans and rocks thrown at them. Firecrackers went off, some underneath a patrol car, Dugan said, adding that some of the bottles hit officers in the head hard enough to knock down the cameras they were wearing.

“Enough is enough after a while,” Dugan said. “Officers aren’t going to stand there and just get assaulted.”

Because it was no longer deemed a peaceful gathering, officers gave a dispersal order, Dugan said. Those who didn’t leave were subject to arrest.

“If nothing would have happened except for people just having a good time, eventually we would have gotten to the point of saying ‘You’ve got to clear the roadway still.’  You can’t just decide to block traffic because you want to peacefully assemble,’” Dugan said.

There was recent precedent on that issue.  On Thursday, March 27, the Arizona Wildcats beat San Diego State and after the game students and others poured onto University Boulevard, blocking traffic. Tucson police were not prepared for the situation that early into the tournament and had to pull resources from across the city to go to the scene, said Chris Widmer, a sergeant in the department’s public information office. Some fights broke out after that game, causing some to say police should have been better prepared, Widmer said.

But people have also been saying the officers’ forceful presence Saturday provoked violence.  “So it’s almost, we can’t win,” Widmer said. “If we’re not there we weren’t there to do anything, and if we are there it’s like we’re causing the incident.”

But Richards, the attorney, expressed concern over the officers’ use of force after he saw videos of the incident that went viral on the Internet.

While police are expected to be prepared for the worst, they also need ensure that they use the force they have at their command in a responsible way to protect the public while still protecting people’s civil rights, Richards said. Police should be able to act on a case-to-case basis to maintain control of specific situations, he said, adding that individual officers found to have used excessive force need to be held accountable, just as an officer in a leadership position needs to be held responsible for the situation.

“Just because the statute says, and even under the Constitution, you’re allowed to declare an unlawful assembly, that doesn’t mean you can then sort of rush into the crowd swinging clubs or something to get them to disperse,” Richardson said. “You have to have well-trained, really, really cool and calm-thinking individuals on the ground making those decisions.”

Videos and accounts of people at the gathering seem to indicate that a few troublemakers tossed some beer cans and set off firecrackers. But The Tucson police news release on the incident, updated last Sunday, seemed to suggest that most of the crowd was violent. [Italics added]

It stated:  “The majority of the crowd did not respond to the dispersal order and began throwing beer bottles, beer cans and firecrackers at the officers. Several of the firecrackers rolled underneath a patrol vehicle that was deployed with the Mobile Field Force Units. As the crowd began to move closer to the officers, pepper ball rounds were used in an attempt to disperse the crowd. Several individuals continued to advance at the officers and were taken into custody. At the end of the night a total of 15 misdemeanor arrests were made. 14 of the individuals were cited and released.”

Tucson police officials are now reviewing videos to see what might have gone wrong.  About 50 officers carried cameras Saturday night and the department is looking now at more than 100 hours of video, Dugan said. The department has a structured disciplinary matrix they will follow if they find that office violated policy, he added.

Widmer said officers need to review all the evidence and watch videos submitted from the public not just those taken by officers during the incident.

“We’re very self-critical,” Widmer said. “If we did violate any policies we’re going to hold ourselves accountable.”

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