Use of Force and the Law

Police tend to enforceTo make people obey (a law, the terms of an agreement, etc). Also: enforceability. More the law if and when it suits their aims of maintaining or restoring control over a protest. As mentioned on at the start of this section, police do not mechanically enforceTo make people obey (a law, the terms of an agreement, etc). Also: enforceability. More the law and will often ignore minor breaches.

However, police can sometimes utilise minor offences to control or harass activists or to justify the use of force.

For example:

• setting up roadworthy stops can effectively block people from getting to an blockade;
• the offences of ‘obstructing a footpath or road’ can be used to justify forceful dispersal; or
• the offence of ‘breaching the peace’ can be used to take away megaphones and loudspeakers.

Police may use particular offences to target particular activists.

While protest actions may involve breaches of the law, police response to protesters are supposed to be strictly within the law. When police claim to enforceTo make people obey (a law, the terms of an agreement, etc). Also: enforceability. More the law by breaking it their moral authority is undermined.

Protesters who break the law are still entitled to the protection of the law. Where police break the law (for example, using excessive force to arrestTo take into custody. More or disperse protesters) legal remedies such as civil actions or formal complaints that might lead to disciplinary action should be pursued. See Complaints against the police.

Theoretically, individual police should also be subject to charges for assault if they use excessive force against protesters.

In reality this is unlikely to happen because the police organisation itself is the gatekeeper of the criminal justice system and it is uncommon that the organisation will lay charges against its own members.

In order to make the police accountable to the law for their actions at protests, it is important that the identity of individual officers involved in incidents be recorded. This is sometimes difficult where police remove their badges and when riot helmets with visors obscure their faces.

Whether on purpose or not, many police tactics have the effect of creating chaos and increasing tensions – escalating the opportunity or the likelihood of arrests.

Police hold a lot of power at protests and the tactics they choose are often the greatest determinant of whether there will be conflicts, risks to safety, and arrests.

For example, decisions to push protestors back, against walls, or into areas they can’t leave can create panic and risks to safety. This police instigated escalation can lead to injuries and arrests.

Even when instigated by police, chaos and conflict is often used in media reports to depict protestors as violent and dangerous and police as rational and responsive. These media depictions also often seek to delegitimise the protest issue.

You can read a more detailed account of these observations in Melbourne Activist Legal Support’s reports on the IMARC protests and the opposing anti-trans and trans rights allies.

Police may use their power of arrestTo take into custody. More strategically.

Arrests at demonstrations may be targeted towards people who police have identified as leaders. In this way, police aim to remove certain people to undermine the action by a strategic application of the law.

The police sometimes use arrestTo take into custody. More teams or ‘snatch squads’ to pick out and arrestTo take into custody. More identified people from a crowd of activists. Police may use horses or batons to force the crowd away and literally snatch a person suddenly and take them behind police lines.

Police may choose to disperse a crowd rather than arrestTo take into custody. More individual members.

Dispersal may be achieved by way of batons, horses, weapons, or police lines pushing people away often with the threat of police violence.

Police may opt for dispersal when they don’t have the facilities or the resources to engage in mass arrests. Dispersal tactics sometimes appear to be designed to punish protesters, which is, at least in theory, outside the role of the police.

Dispersals are less targeted than arrests and can indiscriminately impact a swathe of protestors – catching many people off guard. Dispersals generally involve higher levels of overall force than arrests.

In addition to taking action to prevent a ‘breach of the peace’, police can try to have the protest declared as a riot by having a Magistrate read aloud the riot proclamation. This is an extremely rare occurrence.

In many circumstances, police are empowered to use “reasonable force” in executing their powers.

This includes the power of arrestTo take into custody. More, the power to take finger prints and forensic samples, and some search powers.

Police also now have the power to use capsicum spray and in some instances stun guns to restrain people who are violent or threatening violence.

What constitutes ‘reasonable’ force depends upon the circumstances. A good guide is that the police are entitled to use whatever force the average person would accept as necessary and proportionate in the circumstances. The greater the physical threat to the police or other people’s safety/ property, the greater force it may be acceptable to use.

‘Reasonable force’ does not include assaulting people on arrestTo take into custody. More, arbitrary use of hand-cuffs, or verbal intimidation.

Ultimately, the courts decide what constitutes reasonable force when police action is challenged.

In circumstances where there are a large number of protesters engaged in civil disobedience, police may choose not to arrestTo take into custody. More or only arrestTo take into custody. More selected protesters. They could also engage in mass arrests or use dispersal tactics.

If mass arrests are beyond the capacityThe ability to understand and give legal consent to an action or arrangement. More of police, such as where police are outnumbered by civilly disobedient activists, police can either tolerate the breach of the law or disperse people using force. Whether police choose to tolerate or disperse is likely to depend on a range of factors outlined in why police chose certain approaches.

According to Victorian police guidelines, police must not use nerve pressure points above the shoulder level as a control technique in crowd control situations.

If you see police using pressure point holds on a person’s neck or head you should try and take video/ photos and enquire about the person’s wellbeing.

If the person is injured, you should encourage them to see a doctor as soon as possible and take photos of any visible injuries. They can also get legal advice about making a complaint or a claim against the police.

Police in Victoria have an array of ‘non-lethal’ (or ‘less than lethal’) weapons which may be used to control, prevent or disperse demonstrations.

Special police units such as the Public Order Response Team (PORT) often receive specialised training in particular weapons and may be called in at particular actions.

There are guidelines for the use of such weaponry which theoretically mitigate against their use in dangerous, inappropriate or illegal ways.

Melbourne Activist Legal support has a great guide on the weaponry of Victoria Police.

Capsicum (or OC) spray uses capsaicin, the active chemical ingredient in chillies or capsicums, to incapacitate people exposed to it. 

Although Victoria police guidelines restrict its use to preventing violence, imminent violence, or imminent risks to a persons physical safety, police regularly use it at peaceful demonstrations.

Capsicum spray poses a particular danger to people with asthma and heart problems. It only works if inhaled and/or sprayed in the eyes.

If police use any sort of gas or spray, protect your mouth and eyes with some cloth materialRelevant or important; information which may influence a decision. More and keep asthma medication within reach. The most effective first aid for capsicum spray is prolonged dousing of face and eyes with water. Make sure you know where to go for first aid (for more information on capsicum spray see McCulloch 2000).

Police have used horses against activists throughout history.

The Police Mounted Branch often is seen at protests, marches or rallies in Melbourne.

They are commonly used to push groups of activists away to clear an area or as containment lines to prevent access. As a form of crowd-control they can be an extremely dangerous and unwieldy tool.

When you are conducting police liaison meetings, always stress that horses should not be used at the protest for this reason.

The presence of a horse amongst activists creates a sense of alarm and increase risks to safety. In addition to the horses themselves, police sitting on horses have weapons such as batons ready at protestor head height. Victoria police members on horses were seen hitting protestors on the head with batons during the Occupy Melbourne evictionThe action of recovering land or property from an occupier or tenant by legal proceedings. More in 2011.

Public opinion is very hostile to suggestions that protesters have caused injury or harm to police horses. Police sometimes maintain that protesters have used pins or marbles against horses. Whether these claims are true or not they undermine the legitimacy of protests and are seen to justify a harsh police response.