Episode Transcript
Hello, everybody, and welcome to the Guardian Mindset Podcast with Attorney Eric Daigle. I'm happy to bring you an episode today focused on public order and important recent court cases that provide both clarity and concern in protest response.
Over the past five years, we’ve dealt with a range of protests, many stemming from the death of George Floyd. We've also seen politically inspired protests that led to significant public order issues. I’ve been involved in numerous expert witness cases in this field, specifically dealing with crowd control and public order response.
Currently, I'm in Dallas, Texas, preparing to present at the National Tactical Officers Association (NTOA) Public Order Symposium. We’re also getting ready for the First Amendment Summit happening at the end of May 2025. If you haven’t already, check it out at www.1asummit.com. As always, these podcasts are brought to you by the DLG Learning Center and our ongoing commitment to quality training across the country.
Today’s podcast is inspired by a case I’m preparing for: *Puente v. City of Phoenix*, a Ninth Circuit Court of Appeals decision from December 2024. Special thanks to Adriana for the research support and preparation. This case is particularly insightful for understanding the application of crowd control and public order law.
Law enforcement has often dealt with First Amendment issues—recording police, First Amendment auditors, and social media—but crowd control gives us a deeper perspective. This case serves as a great foundation for that discussion.
Public order cases are complex, involving First, Fourth, and Fourteenth Amendment issues. The First Amendment aspects—unlawful assembly, retaliation claims, dispersing protesters—are increasingly under scrutiny. The Fourth Amendment often centers on excessive force, particularly what constitutes a "seizure." The Fourteenth Amendment includes excessive force claims under the "shocks the conscience" standard and the intent-to-harm test.
In addition to these constitutional issues, we also focus heavily on qualified immunity and municipal liability. Officers must be trained and aware of clearly established law in order to be protected under qualified immunity.
We’ll also be referencing significant settlements from agencies like NYPD, Denver, and Portland regarding protest responses. These are critical elements we'll be covering at the First Amendment Summit.
Let’s start by examining the facts of *Puente v. Phoenix*. This case stems from an August 22, 2017, protest during a Trump rally at the Phoenix Convention Center. The Phoenix Police Department (PPD) coordinated with multiple agencies and designated two protest areas: a Free Speech Zone and a Public Safety Zone. These zones were separated by a pedestrian fence.
In preparation, PPD met with protest organizers, arranged supply delivery, and planned police escorts. They anticipated potential threats and monitored groups like Antifa, known for prior protest violence.
On the day of the rally, approximately 6,000 protesters gathered peacefully until around 7:00 PM, when individuals began throwing water bottles. Suspected Antifa members became increasingly aggressive, using tall signs believed to aid in breaching fences.
PPD responded incrementally, first using pepper balls, then tear gas and smoke canisters. Despite escalating efforts, the violence continued. Officers formed a skirmish line and began dispersing the crowd using pepper spray and flashbangs.
Controversy arose later when challenge coins were discovered depicting inappropriate images and slogans related to the event. While the police chief praised the officers’ professionalism, this coin undermined that message and posed legal concerns.
The legal questions raised in this case include:
1. **Fourth Amendment:** Did the use of tear gas and chemical agents constitute a seizure?
2. **Fourteenth Amendment:** Did the crowd control tactics shock the conscience?
3. **First Amendment:** Was the assembly unlawfully dispersed, and was there unlawful retaliation?
The Ninth Circuit found:
- No Fourth Amendment seizure occurred because the crowd control tactics weren’t aimed at restraining specific individuals.
- No violation under the Fourteenth Amendment because the officers acted without intent to harm and under legitimate law enforcement concerns.
- The declaration of unlawful assembly was valid due to a clear and present danger.
- No First Amendment retaliation occurred; the escalation was tied to public safety, not viewpoint discrimination.
The court also upheld the dismissal of supervisory and municipal liability claims, stating no clearly established rights were violated.
**Key Takeaways:**
- Crowd control must balance public safety with constitutional protections.
- Proper training, planning, and documentation matter greatly in litigation.
- Qualified immunity is preserved when actions are guided by clearly established law and legitimate purpose.
If you’re interested in diving deeper, I strongly encourage you to attend the First Amendment Summit in Connecticut or join virtually. Thanks for tuning in to the Guardian Mindset Podcast. As always: protect those who need protection, help those who need help, and most importantly, keep yourself and others safe.
