On September 19, as part of a series of protests against Immigration and Customs Enforcement (ICE), a demonstration was held in the Aurora, Colorado neighborhood of the warden of an ICE Processing Center.  The warden works for GEO Group, a private company that contracts with the federal government to run the facility.  Three people were arrested during the protest.  Police also eventually diverted the protest by setting up blocks so protesters couldn’t follow the planned route, which looped back to the warden’s home, and perhaps intimidating protesters and journalists.  Whatever your view of the propriety of a political demonstration outside someone’s home (I am generally opposed to that tactic), the behavior of the Aurora police appears constitutionally suspect.

My account of the facts is based on a conversation I had with a friend of mine who attended the protest.  His attendance was based on the understanding that the protest organizers, Denver Communists and Abolish ICE, ensured a constitutionally protected demonstration.  While trying to leave the protest, his way was blocked by screaming police officers.  I have not verified these facts, but I trust my source, who provided the picture above and sent me video of the protest.  I will proceed on the assumption that the facts as related to me are true; if there is something I am missing or have misunderstood, that changes the analysis.

The legal status of a protest outside someone’s home is based on two issues: (1) does the city of Aurora or the state of Colorado ban that type of conduct, and (2) if so, are the bans consistent with the Constitution.  Only if the answer to both questions is yes can police intervene to stop the protest.

First, Aurora generally outlaws picketing in residential neighborhoods, unless picketers or marchers proceed along a “defined route without stopping at any particular private residence or residences. For purposes of this exemption, the term ‘defined route’ must encompass at least a city block as measured by reference to intersecting street(s).”  Further, the picketing must occur between 8 am and 8 pm.  According to my source, the protest complied with these dictates (the time stamps on Twitter are for Colorado time), which is why police were forced to permit the protest initially.

Thus, even if Aurora’s rules about residential picketing are constitutional, the rules do not forbid the demonstration that occurred.  If Aurora were to single out this protest for worse treatment, or even try to intimidate protesters, that would constitute a First Amendment violation.

That said, if the protest did not comply with the rules, the operative question becomes whether the city ordinance is constitutional.  Governments are not permitted to discriminate against speech based on its content, but they may enact content-neutral time, place, and manner rules so long as these rules are narrowly drawn to serve a significant government interest and leave open ample channels for communication.  Aurora’s ordinance, on its face, appears to pass constitutional muster.  Preventing rallies and political activity where people live allows for the quiet enjoyment of one’s home and a sanctuary for one’s private affairs – and may also make residents feel safer.  Just as the state may enact content-neutral rules about protesting near military funerals, the state can place limitations on protests in residential areas.

In Snyder v. Phelps, the Supreme Court held that a court cannot impose monetary damages for the tort of intentional infliction of emotional distress (IIED) against protesters at a military funeral.  In that case, the protesters had complied with content-neutral restrictions prohibiting protests within 100 feet of a funeral.  Maryland’s IIED rules left too much room for the jury to discriminate against the speech involving public issues on the basis of viewpoint, a clear First Amendment concern.  However, the content-neutral restrictions prohibiting protests near funerals are permissible, even if the almost $11 million IIED judgment was a free speech violation.

Aurora’s rules, then, are likely consistent with the First Amendment.  Ample alternative channels existed for protesting ICE, and indeed those channels were used .  The Aurora Police even blessed the protests outside of the ICE facility.  But by setting up a blockade amid a peaceful protest that complied with Aurora ordinances (again, only if my facts are correct), the Aurora police went beyond their permissible powers.  Aurora cannot punish a protest for its content or because the target of the protest is a warden of an ICE detention center.

The Chief of the Aurora Police cited some “vile & disgusting” behavior and attempts to “bait [police] into a confrontation,” but did not elaborate.  The police never specified why they had created the blockade.  They may have had some public safety reason for doing so, but that reason does not appear obvious to me.  It may be that protesters were not continually moving along, in violation of the ordinance, but police could easily have provided this information to those trapped behind a blockade of officers or even warned them first to comply, which it appears they did not do.

Indeed, if protesters were trapped or re-routed, a Fourth Amendment violation may have also occurred, namely arrests or stops without probable cause or reasonable suspicion.  Eventually, three men were arrested for disorderly conduct, a separate violation of an Aurora statute that is likely constitutional – but that is a distinct issue from the way the peaceful protesters were treated.  Additionally, even if there were reasonable grounds for any of the stops or arrests, if they were in retaliation for the content of the speech, that would also be a First Amendment violation.

A Colorado newspaper described the protesters as “terrorists,” due to their purposeful targeting of someone’s home – perhaps to make him feel unsafe – in order to enact political change.   I would not classify this type of generally peaceful protest as terrorism, and I think it is dangerous to depict peaceful protesters looking to correct what they view as gross human rights violations as terrorists.  That said, I largely do not support interfering with a public figure’s home life in order to make a political point, precisely because of the somewhat threatening implications.  The protest was loud, and the chanting is fairly jarring, but appeared peaceful — although the rhetoric in advance of the protest compared ICE to S.S. Officers in Nazi Germany.

Regardless, if my account of the facts is correct, the outsized and aggressive police presence was unwarranted and perhaps impermissible.  Nothing will likely be done, because lawsuits are expensive and time consuming, and not much injury occurred here (assuming the disorderly conduct arrests were for actual disorderly conduct).  And perhaps nothing should be done, because lawsuits are time-consuming and expensive to the taxpayers, and qualified immunity may even shield the police’s actions.  But police and the public should better understand our free speech rights, or police will have cover to target viewpoints they dislike, especially criticism of those they may perceive as one of their own.  The police gave no reasons that I found for their diverting of protesters, and acting without justification in this way is a danger to our civil liberties —  some of the very civil liberties the protesters were trying to protect.