This article is part of TPM Cafe, TPM’s home for opinion and news analysis.
“Protect and Serve” is emblazoned on so many police cruisers in the county. Yet we’ve all seen evidence of the police terrorizing communities of color more often than protecting or serving them.
The weeks of protests since the death of George Floyd in Minneapolis and the accompanying video footage of events have shown police continuing to put the people they are supposed to protect in serious danger. In addition to the direct physical assaults of protesters at the hands of police, the use of tear gas, pepper spray and the arrests of citizens for non-serious alleged offenses has put us all at deeper risk of contracting the deadly and highly contagious coronavirus.
In mid-March many big city mayors and police departments promised there would be fewer arrests for low level offenses to combat the spread of the disease in prison quarters and to protect officers and the community from ongoing spread. Fewer arrests meant less exposure for police, court employees, those arrested and ordinary citizens who interact with those same people. Fewer detainees in jail meant fewer people in cramped and confined conditions that inherently increase the spread of the virus. Limiting the number of people at the jail was an important step to also slowing the spread of the virus in local communities.
People completing misdemeanor and other sentences get released every day. Slowing the spread of the virus in the jail means the people who are released are less likely to bring it home. The same is true for the jail guards and other staff who go into the facilities on a daily basis, and then return to their families and communities.
The policies that limited arrests were designed to help slow the spread of the virus, but we also saw jail populations go down all over the country. With short sentences expiring and fewer people getting locked up for things like shoplifting, trespass, destruction of property and drug offenses, the lowered jail populations were a rare silver lining in the COVID-19 nightmare.
Now, these public health successes evaporated in the blink of an eye, starting at the scene of George Floyd’s death. Why should George Floyd have been touched at all for a non-violent accusation of using a counterfeit bill during a global pandemic? Even before the deadly “knee restraint,” officers demonstrated a disregard for Floyd’s personal space and touched him numerous times with ungloved hands.
The murder of Floyd by the police and decades of similar police abuses have sparked protests all over the country. Those protests have been largely peaceful, and thousands of peaceful protesters have now been arrested and forced into conditions that increase the spread of the virus. Approximately 10,000 protesters have already been arrested by police in the United States, and the numbers will continue to rise as the protests continue.
In most instances, those arrests are not for violent offenses — they are most often for alleged offenses like curfew violations or graffiti. The vast majority of those arrested are not hardened criminals with long rap sheets, or individuals acting with criminal intent, but people who are devastated and publicly expressing their heartbreak and outrage. Yet police all over the country make the decision to arrest, rather than de-escalate.
These arrests put us all in enormous danger. While most of the protesters are wearing masks, are outdoors and make efforts when possible to keep their distance from others, when they are arrested the risk of virus transmission increases beyond their control. Closed police transport vehicles with other people in them, crowded indoor holding cells, numerous officers touching them to conduct searches and move them, all greatly increase the risk for spread. Once in holding cells stripped of all personal items, social distancing becomes impossible, as do best hygiene practices like frequent hand washing or use of hand sanitizer. In some cases, law enforcement officials have removed protesters face masks — the only effective tool for avoiding the virus in close quarters.
Many officers surveilling the protests are not wearing masks themselves. Just weeks after arresting people of color for not wearing masks, police in New York have come under fire for not wearing them at all. Masks are worn to protect other people from the mask wearer. But live news broadcasts and tweets have shown time after time that many police officers in New York and elsewhere are not wearing masks to protect us from them.
And arrests aren’t the only actions taken by law enforcement that risk exposing the more members of the public to COVID. Police in some jurisdictions have repeatedly and frequently deployed irritant gases and sprays during the protests. Tear gas and pepper spray both cause reflexive coughing (and sometimes vomiting) which results in the expulsion of respiratory droplets. In some instances the police have used tear gas on groups of people who have done nothing more than either participate in a protest or — at worst — violated a curfew.
Large numbers of people coughing after the deployment of tear gas or pepper spray near many others also increases the chances that the virus will spread. Protesters are then forced to pay a price — the increased risk of exposure to a deadly virus — for exercising their First Amendment rights and critiquing law enforcement.
The violent police response to the protests — from tear gas and pepper spray, to rubber bullets, to shoving and hitting elderly and vulnerable people — has also increased the need for emergent medical treatment. Physical injuries that require immediate medical treatment increase the burden on medical first responders and hospitals that are already struggling to treat virus patients, and they also increase the likelihood of exposure. That police — who kill an astounding 1,000 Americans a year — might be cavalier about public health is no surprise. After all, they continue to perpetuate violence at demonstrations against police violence even with cameras from all over the world trained on them.
And the hypocrisy is palpable. Actions that increase the spread of the virus have been treated as criminal in some instances. For example, police in Pennsylvania arrested a woman they accused of intentionally coughing on fruits and vegetables in a grocery store. She faces charges of threats to use a biological agent and felony criminal mischief, among other things. Meanwhile, actions by law enforcement at protests — including removing masks, making arrests for trivial technical violations of the law like curfew and trespass and certainly the use of chemical agents known to cause coughing against citizens — greatly increases the spread of the virus, far more than coughing on produce. Yet there has been little to no accountability for officers.
The excessive arrests and use of violence are clearly not necessary. Not long before the protests against police violence broke out in recent weeks, armed white men stormed statehouses across the U.S. to protest stay-at-home orders. Some white protesters were filmed shoving police officers at a rally against California’s stay-at-home order in Sacramento. These protests — even though they included violence or the inherent threat of gun violence — were tolerated peacefully by law enforcement. If any arrests were made, no tear gas was deployed and there was little to no evidence of violence against these protesters, who were overwhelmingly white and who were not directly criticizing police conduct.
The protests related to George Floyd, however, directly challenge police violence and a long standing lack of accountability for that violence. Police have reacted in a militarized, escalatory fashion in these cases — causing severe injuries and increasing the risk of serious illness and death — not because of the nature of the demonstrators’ behavior, but because of the specific message of the protests and the demographic delivering it.
Until officers are willing to actually protect and serve everyone in their communities, the protests will continue to be necessary. The increased spread of this deadly virus should not be a consequence.
Vida Johnson is an associate professor of law at Georgetown University. She is the co-director of the Criminal Defense and Prisoner Advocacy Clinic, as well as the Criminal Justice Clinic and the E. Barrett Prettyman Fellowship program.