Pity the Poor Police: New Laws to Back the Blue
The French and British governments, along with American lawmakers, are currently passing laws intended, among other things, to extend police powers to contain and control protests. Most of these laws respond directly to “new forms” of protest seen in the last year, as well as to a crisis of legitimacy of policing in general. The George Floyd uprisings over the last summer in the US saw a generalization of anti-police sentiment, expressed not only by bricks thrown through windows, precinct buildings burned, and Wendy’s restaurants trashed, but also by a widened pool of liberal voices on social media, proposals for police reform and defunding, as well as by the international spread of solidarity rallies and riots. Within the context of the COVID-19 pandemic, police have been given extended measures for lockdowns, and policing the edges of squeezed stimulus checks, curfews, and people confined to their homes have also added to officers’ responsibilities.
In France, the Loi Sécurité Globale [Global Security Law] was passed on April 15, 2021. Its general aim is to establish a “continuum of security” between municipal and local police, along with private security forces. The UK Police, Crime, Sentencing and Courts Bill is a document of over 300 pages grouping together many disparate parts of existing law. Part of the bill focuses on giving police broad authority to control new forms of protest, such as those used by Extinction Rebellion and Black Lives Matter. The legislation also applies to Traveller community encampments, and extends sentencing and reduces parole for serious crime and youth offenders. In the US, laws pertaining to the definition of riots and protests, which expand the legitimate use of lethal force, are currently pending in 29 different states, according to the International Center for Not-for-Profit Law.
Arguably, with so many emergency measures and bills being rushed through the UK Parliament since the beginning of Brexit and during the pandemic, the Police, Crime, Sentencing and Courts Bill might never have come to public attention were it not for the murder of Sarah Everard. The 33-year-old marketing executive had disappeared on March 3, 2021, in South London. On March 9, Wayne Couzens, a 48-year-old London police firearms officer, was arrested for her murder. A vigil for Everard on Clapham Common organized for March 13 was banned and then authorized; police trying to disperse it slammed young women activists in handcuffs to the ground as night fell.
Arguments about the safety of the protest, given COVID, confronted an outcry about safety issues raised by the police’s treatment of the crowd and the safety of women in public spaces in general. The controversy drew attention to the Bill, which was to be given its second reading in Parliament on March 15 and 16. Bad timing for the government: feminist protests for Sarah Everard converged with the imperative to protect their right to have such protests and a new protest movement—#Killthebill—was born. It mainly took the form of large, socially-distanced rallies which brought together those with anti-police sentiments: parts of the UK Black Lives Matter movement, families campaigning for justice for their loved ones killed by the police, feminists, and other parts of the Left concerned with civil liberties. In Parliament, the most conservative of conservative backbenchers found themselves in opposition to the law because of free speech concerns, alongside the Labour front bench. In Bristol, impressive and unexpected riots erupted.
The story of Sarah Everard’s disappearance could be read as one about the way that public space has been transformed under lockdown. A handful of misguided Twitter users wondered whether she had “broken restrictions” or was officially part of her friend’s “bubble” —as if sanitary measures followed to the letter prevent all harm including femicide and rape. It was as if the dispersed threat of the virus had made being outside at all morally and socially unacceptable. But we could also ask: “had there not been a lockdown, would Ms. Everard have been walking home through a space empty of witnesses?” Sarah Everard was “last seen” at 9:28 p.m.; but this “sighting” was by a CCTV camera. And, supposing that Mr. Couzens lured her into his car on the basis that he was a police officer, did he do so using a threat that the young woman had potentially broken the law by being out during a lockdown?
Before the policeman was arrested on March 9, and before her remains were discovered on the next day in Kent, newspapers continued to emphasize that she had gone missing in South London and lived in Brixton Hill. They therefore participated in the fantasy, held by the white and government imaginary, of Brixton as a “dangerous” neighborhood, given its Black Carribean community and the Brixton riots of 1981, in response to stop-and-search laws, and 1995, in response to the death of Wayne Douglas in police custody amidst a growing discontent around the gentrification (“regeneration”) of the neighborhood. That very gentrification, however, has filled more and more parts of South East London with young white professionals, cute little bakeries, and affluent young parents pushing expensive prams. The danger of police violence and the progressive dispossession of Black communities from their neighborhood is distorted into an idea of danger to the young professional walking home. In response to Everard’s death, Conservative MP Priti Patel (sponsor of the anti-protest bill) was quick to try to treat the case of a woman murdered by a policeman as a story about rights to public space: “Every woman should feel safe to walk on our streets without fear of harassment or violence.” London mayor Sadiq Khan went so far as to say that London streets are not safe for women or girls, while a budding mayoral candidate said that London streets are not safe for anyone. Local police told women to stay at home, while Green Party peer Jenny Jones suggested a 6 p.m. curfew for men that would “make women much safer, and discrimination of all kinds would be lessened.”1 Law-and-order feminists called for more policing, to protect women from being murdered by policemen.
Many British women shared experiences of their fear of walking home at night under the hashtag #SheWasJustWalkingHome, and this outpouring gained international attention. On the one hand, it evokes how complicated “just” walking home or crossing any public space has become during the pandemic. But of course someone who was not “just” walking home—a sex worker, a drug dealer, a homeless person, or any person unable to follow the government restriction that one must “stay home” to “save lives” should also not have to fear murder—moreover, murder by a cop.
Police, Crime, Sentencing and Courts Bill
Given the widening distrust of the police after Everard’s murder and the rough policing of the vigil for her on Clapham Common, the Police, Crime, Sentencing and Courts Bill was extremely unpopular. The government website states, describing the law:
The Commissioner of the Metropolitan Police Service has called on the Government to update this ageing legislation to allow the police to safely and effectively manage the highly disruptive protests we see today. The Home Office has therefore engaged with Police Chiefs and commissioned Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services to conduct an inspection into the policing of protests to understand what needs to be to ensure that the police can safely manage highly disruptive protests whilst preserving citizens’ freedoms of expression and assembly.
Whose “safety” is meant here? The law doubles the maximum sentence for assaulting an emergency worker. The idea of safety broadly speaking is projected on to the idea of “public welfare.” A curious pocket of English common law called “public nuisance,” dating from the 12th century, which concerns damage suffered by “the public” rather than by an individual, has been adapted for new purposes. Formerly used in cases involving encroachments on the King’s land, public roads, or waterways, it now covers threats to the “life, health, property, morals, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty's subjects.”2 Thus the law uses this notion against Traveller communities, saying that their encampments threaten the safety or comfort of “the public.” The main point of the bill is the idea that protests, though often undertaken with a view to defending “the rights common to all Her Majesty’s subjects,”can infringe on the “comfort” of the public. The government factsheet reassures us that the inalienable democratic right to protest is being protected, as long as protests aren’t “disruptive.” Protests must not cause distress to the “public,” and especially not to politicians: two clauses widen the area around Parliament within which protests are not permitted, saving those in power from having to see or hear public opposition to their actions.
The issues are very British: nuisance, comfort, upset, safety; it would seem that British protesters are not very dangerous. The law is there to “deal with protests where people are not primarily violent or seriously disorderly but … had an avowed intent to bring policing to its knees and the city to a halt and were prepared to use the methods we all know they did to do that.” The only violence I ever read about happening in the BLM protests in London last summer was when a police officer rode through a crowd at great speed and was knocked unconscious by a traffic light.
Global Security Law: All About Images and the Fringes of Policing
The French Global Security Law similarly inverts the risk police pose to protesters. It locates danger to police in images, both photographic images circulated on social media and in newspapers and the symbolic or social “public image” of the police. The law was proposed by Gérald Darmanin, a former member of The Republicans appointed to Macron’s government last October, just before the whole country went into its second full lockdown under COVID-19. One of its most controversial sections was Article 24, which made it a criminal offence to “publish, by any medium, the face or any other identifying feature” of a police officer, “with the aim of causing them physical or psychological harm”—by, for example, disseminating a video which displayed the officer brutalizing someone. This part of the law was naturally contested, particularly because in targeting images in general, it infringes on press law and the freedom of journalists, who as a group with a platform were able to be very vocal about it. Two riots in Paris, on November 28 and December 5, provided the strange spectacle—allegory?—of journalists joining the black bloc to fight the police in open combat. Article 24 was officially withdrawn. In reality it was simply incorporated into Article 18 of the “Law on Separatism,”, another law Darmanin is currently promoting, which seeks to “strengthen republican values” by criminalizing religious groups or communities seen to be “separatist” or simply “separate” from France’s famous secularism. Article 18 classifies the diffusion of images of police as a kind of doxxing or “online hate crime,” on the basis that it threatens the safety of individual officers and makes their job difficult.
Meanwhile, Article 24 of the Global Security Law has been transformed into two separate and complementary offences. One imposes five years imprisonment and a fine of 75,000 euros for identifying a police officer acting "in the context of a police operation” with the aim of causing harm to them psychologically or physically. A sentence of five years of imprisonment and a fine of 300,000 euros was also created for anyone making any kind of personal database "relating to civil servants or persons in charge of a public service.” Images have officially slipped out of the law, in order to make sure there is no infringement on press freedom, but simply identifying officers is now criminalized. This rewriting seems geared toward sanctioning initiatives such as the Copwatch police activity monitoring project, mentioned as a threat several times during parliamentary debates.
Another controversial part of the law, also amended after protest, deals with drones and surveillance. The original text authorized the use of drones for “the prevention of attacks on personal security,” surveillance of drug trafficking, protection of public buildings, prevention of terrorism, and surveillance of demonstrations. Drones are actually already used to monitor protests in France, but the new law means the police won’t be legally obliged to warn protesters. Under the new law, drones can be used in the case of “crimes or offenses punishable by a prison sentence of five years or more.” (One wonders how one can know, until the drone footage has been looked through in court, whether it was appropriate.) And drones are permitted when the circumstances make it difficult to use other image capture tools. Article 22 now stipulates that drones can now only be used for single image capture and not for filmed images; recording of sound and video is prohibited, as is using automated facial recognition devices and other “personal data processes.” In summary, the law renders it difficult for the public to hold police accountable, extending police powers and state capacity for surveillance. Using a discourse of care, not unlike the UK’s wording of “comfort” and “distress,” it centers the “physical and psychological wellbeing” of police, it also raises police above the status of other citizens, meaning that any assault on an officer will soon be considered an act of terrorism.
Laws as a Response to Recent Protests
It is quite clear that both laws attempt to adapt police powers to difficult times. The UK Bill is explicitly an “update [to] ageing legislation to allow the police to safely and effectively manage the highly disruptive protests we see today.” Whether this refers to the safety of protesters is an open question—but it is clear from the factsheet that the bill responded to a request from the Commissioner of the Metropolitan (London) Police, developed in consultation with an increasingly discontented police force, “ever since the first large-scale Extinction Rebellion protest,” as “existing public order legislation was passed in 1986 and is no longer fit for managing the types of protests we experience today.”
In obvious response to the toppling of the statue of the slave trader Edward Colston in Bristol last year, the bill introduces sentences of up to 10 years for those who damage memorial statues, adding a special clause which allows courts to pursue high fees for damages. Again, the “public” is invoked: “There has been widespread upset about the damage and desecration of memorials with a recent spate over the summer of 2020.” Since most statues in the UK are “typically of low monetary value,” worth less than 5,000 pounds; “sentimental and emotional impact” will now be included in financial assessment of damages to make “the full range of sentencing powers” available. While the claim of “physical or psychological” harm to cops seems highly spurious in the case of the French law, the “sentimental and emotional impact” and “discomfort to the public” following a felling of a statue seems even harder to prove.
Giving police powers to repress “nuisances such as producing excessive noise or smells, or offensive or dangerous behaviour in public, such as hanging from bridges,” the UK law states that measures previously taken in response to “marching protests” will be applied to “static protests,” such as the road and bridge blockades which have proliferated with Extinction Rebellion. Since Thatcher, all protests have had to obtain police permission, but the definition of protest will now be enlarged to include “single person” protests. The definitions of “nuisance,” “disruption,” and even “protest” are at stake here.
The emphasis on “images” in the French Global Security law is also aimed at containing recent movements, in particular the gilets jaunes (yellow vests) movement of 2018–19. Unlike the participants in left-wing protests usually subjected to police violence, who are generally suspicious of forms of surveillance and aware of the dangers of filming each other, the gilets jaunes openly filmed themselves on demonstrations. The property damage they caused was far above what had been seen in recent social movements, one of the reasons they achieved more than the trade union movement had in the last 30 or so years in terms of governmental concessions, in a space of just two to three weeks. In them a new demographic was experiencing police violence and repression, normally suffered on a daily basis by non-white people and protesters from the far Left, and they were vocal about it. A new discourse about police violence proliferated in a much more visible way, as people lost hands, eyeballs, and parts of their jaws to police missiles: grenades, flashballs (rubber bullets), and tear gas. The police also adapted their tactics, becoming more violent.
The heightened sentiment against the police from this corner of predominantly white France has converged in solidarity with the equivalent of the Black Lives Matter movement: notably the comité Adama, amongst other groups who campaign for justice for families of those murdered by police, and who were also active at the same time as the gilets jaunes. On June 2, 2020, Assa Traoré, whose brother Adama Traoré was murdered by cops in 2016, called for a protest over the killing of George Floyd. While this protest, just after the first lockdown ended, attested to French solidarity with the victims of police violence in the US, it also pointed to the racism of French police. Right-wing commentators would have been at ease criticizing what they see as big bad America, where guns are easily obtainable and shootings happen at the drop of a hat, but Traoré’s strategic move meant they could no longer ignore the prevalence of similar police violence in France. The strength of this movement is also reflected in the new law: a White Paper reveals that while journalists and civilians will be limited in filming police, body cam and drone footage will be used in court. This is a cynical concession to demands for more transparency and accountability around police murders. How much footage from the body cams of trigger-happy police will be “lost,” “damaged,” or “not switched on”? Would we know as much we do about George Floyd’s murder had Darnella Frazier not been filming? Moreover, as is attested by the trial of Derek Chauvin, images themselves are never enough and witnesses who filmed the event have had to testify in court. Did the mechanical witness who filmed Sarah Everard for the last time manage to prevent her murder?
Since the George Floyd uprisings ripped through American towns in the summer of 2020, there has been a “massification” of awareness about police violence, and it could be said that more and more people distrust the police, and have become aware of the need to amend or abolish the police system. Some responses are reformist, calling for more policing of the police, for the defunding or restructuring of the police, based on the idea that “violent police” are a few rotten apples or some kind of coincidental corruption of the system, while others call for the outright abolition of the police, the prison-industrial complex, and the underlying conditions of private property which the police serve to protect, and the lack of which makes people vulnerable to police violence in the first place.
In America, a series of laws aimed at protest are currently being. The “Combating Violence, Disorder and Looting and Law Enforcement Protection Act” is likely to pass in the Florida senate. 71 similar laws are currently pending in 29 other states, many of which respond explicitly to the George Floyd uprisings, as well as to the earlier Dakota access pipeline struggle. For example, laws variously extend penalties for protests near gas and oil pipelines, and for blocking roads or traffic, they expand the definition of “riot,” providing a new justification for using deadly force near a “riot.” Some states seek to give immunity to members of the public who run over protesters. In Ohio, a clause in one law would criminalize the intimidation or “taunting” of police, while Texas lawmakers would elevate threats made in the context of a peaceful protest to the level of a felony offense of “threatened terroristic violence.”
The French law says little about specific behaviors of protesters, focusing instead on the working conditions of police and their public image, as means of increasing their powers. It is geared toward what comes after a protest: the criticisms of police comportment, run through the media or through courts of justice. The British law pretends to center on the safety of the public, and focuses on the content and form of protests in such a way as to expand the reach of the police. Most of its expansion of police power lies in increased sentencing and punishment. The US laws expand the definition of “riot” in order to increase the immediate powers of police or passersby in controlling protests. The US laws use the example of the Capitol invasion to pass laws which mainly pertain to BLM protesters, just as the French law uses the threat of “terrorism” to justify measures which actually respond to the gilets jaunes and the comité Adama. In this sense, although the laws all broadly respond to similar situations, they position the police, protesters, and public differently.
These laws, broadly speaking, mark a crisis in the legitimacy of the police, and therefore in their capacity to keep order. As the state becomes less and less welfare-oriented across Europe and the recently Brexited British Island, and as stimulus checks do not by any means cover the losses caused by the pandemic in America, the state is revealed in its incapacity to meet people’s material needs, or at least appease them, as it could during boom times. It seems increasingly reduced to its police function. The police’s job of public order has become more taxing over several states of emergency, social movements, pandemics, economic recession, and terrorist threats. In France, after the Charlie Hebdo attacks, many identified with or felt protected by the police; not so much after the gilets jaunes. The announcements of the British Bill a few days after a policeman had been arrested for Sarah Everard’s murder couldn’t have illustrated the legitimacy and PR crisis more aptly. While it seemed an opportune moment for governments to push through such new limits to freedom of expression at a time when streets are empty, when the general line is that it’s hygienically and morally unacceptable to be outside, in both France and England the laws sparked riots.
A positive reading of these laws might say that they attest to how strong and powerful these movements—the BLM rallies, the gilet jaunes, and the occupiers—are or could be. Yet they also reveal that police, facing strained working conditions and national crises, are also organizing themselves into a politically legible force. In the UK, the bill came out of a polite “consultation” process with officers. In France, police trade unions are at the root of the law: they are its main supporters, putting on extra-parliamentary pressure to help Macron push through his vicious liberalization program. In America, it is Republican lawmakers who are making the effort, with the visible force of police-proxy movements such as Blue Lives Matter at their side. These laws show the magnitude of the current crises, and the concurrent development of police as a politically articulate movement of their own.
Archbold: Criminal Pleading, Evidence and Practice, ed. James Richardson and David. A Thomas, (Sweet & Maxwell, 2005).