It’s one thing for a person to seek redress to a governmental body, which is a right protected by the Constitution. But then, does the protester get to disrupt the body to the point where it cannot conduct its business? This was the issue facing City of National City, California (great name, right?), but before you leap off the edge, it could happen elsewhere, like Washington.

Tasha Williamson, and others, decided to engage in a protest at a City Council meeting.

In July 2018, protestors, including Williamson, performed a “die-in” at a city council meeting in National City, related to the death of Earl McNeil, a black man who died in police custody. At a predetermined time, the protestors disrupted the meeting by chanting, and several of them made their way toward the public speaking podium and city council members. After showing the city council members their “bloody hands,” six protesters lay down on the ground near the podium, keeping their red-painted hands raised and chanting “I am Earl McNeil,” and “you have blood on your hands.” Several other people associated with the protest remained in the audience showing painted red hands, chanting, and video-recording the demonstration. The mayor called for order, but the protesters refused to stop their demonstration, and the council meeting was adjourned.

Police warned the protesters who “died” that if they didn’t leave, they would be removed and arrested. They remained, and the police did as warned.

The protesters had previously agreed that, if arrested, they would act as dead weight and refuse to cooperate with being removed. The six protestors followed through with this agreement, and officers pulled or carried each of them out.

Williamson didn’t make it easy for the officers, who handcuffed her behind her back, to remove her.

As they lifted her up, Williamson initially placed her feet under her, but she did not support her own weight. The Officers struggled to lift Williamson and pulled her backward by her arms and wrists while she was in nearly a seated position. Williamson was loudly chanting before the Officers started removing her from the room. During the approximately 12 seconds that she was being pulled from the room, Williamson screamed continually. As the Officers and Williamson approached the exit door, Officer McGough released Williamson’s upper right arm, and Officer Nguyen dragged her through the doorway alone, by her left wrist and forearm.

Williamson subsequently sued under § 1983 for violation of her civil rights and the injuries sustained during her removal, a sprained wrist, mild swelling, and a torn rotator cuff. The district court denied qualified immunity, and the cops brought an interlocutory appeal to the Ninth Circuit.

While recognizing the right to protest, the Court held that when the protest precluded the functioning of government, it was not a violation of the protesters’ constitutional rights to remove them from the meeting, and the use of force here was no greater than necessary to accomplish the removal under the circumstances.

We conclude that National City’s interest in forcibly removing Williamson from the city council meeting was low, but it was not nonexistent. Williamson’s nonviolent disruption of the city council meeting was a minor offense. And where Williamson’s actions did not pose any physical danger to others, we do not consider her relative culpability. But even if the city’s interest was low given the lack of exigency posed by threat of harm or other factors, this does not mean that the city was “required to permit the ‘organized lawlessness’ conducted by the protestors.”

The “die in” presented an interesting conundrum. Can protesters effectively shut down government by going limp? Does their exercise of free speech by chanting, and refusing to stop chanting, stymie the ability of the city council to hold its meeting and perform its duties? Did they find the secret sauce to making their point with government incapable of doing anything to prevent it?

It goes without saying that citizens have a right to express their disagreement and dissatisfaction with government at all levels. But they do not have a right to prevent duly installed government from performing its lawful functions. See Felarca, 891 F.3d at 818. To conclude otherwise would undermine the very idea of ordered society.

Accordingly, the officers’ removal of the protesters did not violate their constitutional rights. But what about the amount of force used, given that the protesters posed no risk of harm to anyone?

Even viewing the evidence in Williamson’s favor, the type and amount of force used by the Officers in this case  was minimal. The Officers did not strike Williamson, throw her to the ground, or use any compliance techniques or weapons for the purpose of inflicting pain on her. Rather, they held her by her arms and lifted her so they could pull her out of the meeting room after she went limp and refused to leave on her own or cooperate in being removed. Moreover, the inherent risk of two officers pulling someone who has gone limp and refuses to move by her own power is not significant.

Essentially, the court held that the force used was the minimal amount needed to perform the removal, and to the extent it was harmful, Williamson’s choice of going limp and being uncooperative was largely the cause of her problems. While the Court didn’t say so, this was a “play stupid games, win stupid prizes” discussion. The Court declined to hold the injuries de minimis, per se, but made clear they were significantly less serious than injuries pleaded in other excessive force cases. Indeed, in other cases the plaintiffs argued that the police could have dragged the protesters out rather than employed “compliance techniques,” which is cop-speak for a beating.

Williamson could have avoided or reduced the pain and injury she alleges she suffered from the Officers’ conduct by cooperating with them and leaving the room under her own power. She did not. But her choice does not render the Officers’ conduct unreasonable. To conclude otherwise would be to discount entirely the City’s legitimate interests in maintaining order and ensuring that the public’s business is not circumvented by people engaging in disruptive, albeit nonviolent, conduct.

This is a hard line to draw, with serious arguments on both sides contrasting the constitutional rights of non-violent protesters with the functioning of government. The Ninth Circuit drew its line, although it’s unclear whether it would have ruled differently had the officers who removed Williamson not been so circumspect in their use of force or had Williamson’s injuries been more severe. It’s a line, but not one that doesn’t have a lot of wiggle room in it.

H/T Eugene Volokh