The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last week, Joe Biden stated that if the rioters at the Capitol last week had been associated with Black Lives Matters, they would have been treated much more harshly. I heard a segment on NPR this morning with the same theme. The implication is that right-wing and white rioters get treated with kid gloves, while left-wing and minority rioters–and even peaceful protesters–face violent crackdowns. [UPDATE: Here's a link to the NPR audio. If you listened to this report, you would have no idea that there was any violence associated with last Summer's protests, much less that there was looting and rioting all over the country.]
It so happens I have a forthcoming article about the state of Second Amendment rights in light of widespread law enforcement abdication during last summer's riots that followed George Floyd's death. The rioters, to the extent they were political, were leftists, and while there were many white rioters, there were many non-whites as well. So we have an empirical basis to judge Biden and NPR's allegation; how did political leaders and law enforcement actually react last summer? (Note I am not commenting on whether law enforcement treats street criminals differently depending on race, but solely on whether we can discern racial and political bias in how politically-inspired violence has recently been handled).
So let's start with some background. While the vast majority of demonstrations last summer were peaceful, the accompanying rioting across the country was incredibly destructive. There are different ways of measuring the property damage the riots caused, but they are up there with the damage from the 1992 Los Angeles rioting, and the totality of the urban riots of the 1960s.
Looters, rioters, and others connected with the unrest murdered approximately twelve people (approximately because the circumstances of a few deaths are unclear). These include David Dorn, a retired seventy-seven year-old police captain who looters shot and killed when they broke into a pawn shop; Secoriea Turner, an eight-year-old girl, who was killed during a shooting incident involving armed rioters in Atlanta; and Aaron Danielson, conservative counter-demonstrator, who a leftist rioter stalked and murdered. The overall death toll was about double the dozen, including individuals shot and killed by police and armed civilians in self-defense, people killed by right-wingers reveling in the chaos, people killed by automobiles whose drivers were trying to escape the rioting, and so forth. The related death toll is much higher, as murder rates have soared in cities throughout the country in the wake of the chaos.
So how did the authorities react to all this? There were some well-publicized incidents of excessive force used by police in a few instances, especially toward the beginning of the rioting. And there are some terrible anecdotes one can find on the internet, though one must keep in mind the statistical context that an estimated 15 to 30 million people took part in BLM protests last summer. In any event, the overall picture is far from the Biden and NPR picture of consistently harsh, violent crackdowns.
Let's take a few examples:
Minneapolis: For the first few days of riots, Minneapolis police focused on defending their embattled 3rd Precinct building located at the center of the unrest. The mayor then ordered the police to stand down and abandon the building to the angry crowd that had surrounded it. The police withdrawal caused the situation to "spin out of control in the neighborhood around the precinct house"; the Precinct was burned to the ground, and "nearly every building around it [was] vandalized, looted or set on fire." Order was only restored when Gov. Walz, responding to pleas from local legislators, called in the National Guard. Walz said he didn't "know what the plan [was]" but wasn't "going to wait for the city to tell [him]," adding that the city officials "ha[d] lost control" and that their response was "an abject failure." Mayor Frey, defending his stand down order, acknowledged that police made "only a handful" of arrests across the first two nights of violence.
Seattle: For twenty-three days in June, armed leftists occupied six blocks of the city's Capitol Hill neighborhood, declaring the area a "police-free" zone they called the "Capitol Hill Autonomous Zone" ("CHAZ"), later changed to "Capitol Hill Occupied Protest" ("CHOP"). Bands of self-appointed, gun-toting "guards" set up encampments and patrolled the area, looted stores, smashed windows, and prevented residents from leaving or visitors from entering—in the process devastating businesses located in the occupied blocks. In early June, as rioters began to overwhelm the affected neighborhood, Mayor Jenny Durkan, over the objection of Police Chief Carmen Best, ordered the Seattle police to abandon its precinct in the area, allowing rioters to trash the building. After the occupation began, Durkan defended it as a mere "block party"—"a peaceful expression of our community's collective grief and their desire to build a better world." City officials "not only permitted the establishment of a police-free zone, but provided infrastructure like concrete barriers and portable toilets to sustain it." Mayor Durkan only changed her tune after armed robberies, shootings and rapes in the zone went out of control.
Nearby, beginning in June, demonstrators took over a stretch of Interstate 5, blocking traffic for nineteen consecutive nights. Although walking on I-5 is illegal, "the Washington State Patrol looked the other way, even setting up barriers" to facilitate demonstrators' blocking of the freeway, and refused to arrest those who obstructed traffic. A State Patrol spokesman told the press that "he doesn't believe WSP surrendered I-5, but reacted appropriately to a unique situation."
Portland: Portland suffered three months of nightly riots. Daryl Turner, head of the Portland Police Association, alleged that Portland Mayor Ted Wheeler and Multnomah County District Attorney Mike Schmidt limited the city's response to riots in order to appease lawbreakers: "If it is acceptable for rioters to commit acts of violence against community members and to try and burn down occupied buildings, and if this conduct is allowed to continue," Turner said, "then Portland is lost." Oregon State Police, about one hundred of whom had been in Portland for two recent weeks to assist local authorities with quelling violence, announced in mid-August that they were withdrawing from the city in frustration. "We're in a county that's not going to prosecute this criminal behavior," said a State Police spokesman.
Chicago: On a particularly violent weekend in early June, Mayor Lightfoot refused to deploy the National Guard beyond Chicago's central business district, drawing condemnations from officials representing districts on the south and west side of the city, which were left unprotected during Chicago's deadliest weekend in sixty years. Over that weekend, twenty-four people were killed and at least sixty-one injured by gun violence, and the city's 911 dispatchers received 65,000 calls in a single day—50,000 more than normal. As chaos unfolded, one Democratic city councilwoman told the mayor on the phone, "My ward is a shit show …. [Rioters] are shooting at the police. I have never seen the likes of this. I'm scared."
Louisville: Riots left the city's downtown "look[ing] like a war zone," according to a local paper. Louisville Police accused Mayor Greg Fischer of issuing stand-down orders to officers during riots, allowing lawlessness to run rampant. Several hundred officers accordingly walked out on Fischer in protest when he appeared before them to speak in early June, with police leadership calling for the Mayor's resignation.
New York: When violence in New York City erupted in May, Mayor Bill de Blasio announced that NYPD officers would use "a light touch" with demonstrators. Days later, de Blasio's "light touch" policy was blasted by a fellow Democrat, Governor Andrew Cuomo, who strongly condemned the city's failure to quell rampant rioting, looting, and violence.
Columbus: Although several highranking city officials denied this, multiple 911 operators informed callers reporting attacks by rioters that police were under orders to stand down: "We were told by our mayor to stand down, so the mayor has given [demonstrators] full range of the street," said one operator.
Long Beach: Video clips showed looters "busting their way out of a boarded-up store … with armloads of clothes as officers watch from a few dozen feet away," as well as "looters bolting past a cluster of officers in riot gear, who are unable to grab a single one of them." City officials, while denying accusations of a stand-down order, admitted that the police response was lackluster; Long Beach Police Chief Robert Luna said the department expected only a few hundred peaceful demonstrators, and mistakenly thought that officers should preemptively "back off" in the hope "that people will protest peacefully" and "that there is voluntary compliance."
Indianapolis: In Indianapolis, Mayor Joe Hogsett denied allegations of a stand-down order, but the city's police chief admitted, "We did allow the protesters"— who, the Chief claimed, were initially peaceful—"to have a little more space in the circle"; although officers remained in the vicinity, he said, "We simply backed off in an effort to give them space and to oblige their requests." According to local news, "[m]any business owners in downtown … are angry because they believe it is the choice to back off which gave instigators enough room to cause destruction, and by that time, officers were no longer in a position to handle it."
Raleigh: The weak law enforcement response to rioting and looting led many downtown observers to "question why police at times were nowhere to be found as protesters damaged property." Officers' absence was partly explained by the city police chief's self-described refusal to put "an officer in harm's way to protect the property inside a building because insurance is most likely going to cover that."
Denver: Police leadership in Denver was accused by Nick Rogers, head of the local police union, of ordering officers withdraw from a July pro-police rally and effectively permit demonstrators to be attacked by counter-protestors—though, according to Rogers, one SWAT lieutenant on the scene disregarded the order and refused to retreat. A Denver police spokesmen declined to comment on the incident.
But what if rioters were threatening an important federal building? Surely if BLM protestors had approached the Capitol or the White House, there would have been out-of-control law enforcement violence and mass arrests? Well, no. Let's go to Wikipedia:
The White House was on lockdown the night of May 29 in response to protests reaching the gates…. The protesters came into conflict with the United States Secret Service. … At one point the protesters were pepper sprayed. Several Secret Service agents reportedly suffered broken bones due to rocks and bottles of urine and alcohol thrown at them by rioters.
As a result of the protests, the Secret Service rushed President Donald Trump to shelter in the White House underground bunker, where he remained for almost one hour. This occurred after some protesters crossed temporary barricades set up near the Treasury Department buildings. Around that time, the Secret Service alert level was raised to "red". The president's wife and son were also brought to the bunker…. The Secret Service reported that six people were arrested in Lafayette Square within President's Park, directly north of the White House.
The Capitol Police were woefully understaffed and under-prepared for last Wednesday's riot. The reasons for that need to be thoroughly investigated. But the notion that right-wing mostly white rioters get special treatment while BLM-associated lawless behavior attracts violent, harsh, crackdown is at odds with what actually happened last summer.