When Protest is the Disaster: Constitutional Implications of State and Local Emergency Power

Abstract

The President’s use of emergency authority has recently ignited concern among civil rights groups over national executive emergency power. However, state and local emergency authority can also be dangerous and deserves similar attention. This article demonstrates that, just as we watch over the national executive, we must be wary of and check on state and local executives — and their emergency management law enforcement actors — when they react in crisis mode. This paper exposes and critiques state executives’ use of emergency power and emergency management mechanisms to suppress grassroots political activity and suggests avenues to counter that abuse. I choose to focus on the executive’s response to protest because this public activity is, at its core, an exercise of a constitutional right. The emergency management one-size-fits-all approach, however, does not differentiate between political activism, a flood, a terrorist attack or a loose shooter. Public safety concerns overshadow any consideration of protestors’ individual rights. My goal is to interject liberty considerations into the executive’s calculus when it responds to political activism. I use the case studies of the 2016 North Dakota Access Pipeline protests, the 2014 Ferguson protests, and the 1999 Seattle WTO protests to demonstrate that state level emergency management laws and structures provide no realistic limit on the executive’s power, and the result is suppression of activists’ First and Fourth Amendment rights. Under current conditions, neither lawmakers nor courts realistically restrain the executive’s emergency management action. I suggest a better check on executive crisis and emergency actions undertaken in response to mass protest. When the protest is the disaster, more robust judicial review of executive emergency declarations and the establishment of a council to guide state and local executives’ emergency/crisis response are crucial.

Keywords: protest, emergency, executive power, police, excessive force, Fourth Amendment, First Amendment, police power, mayor, governor, gubernatorial power, Ferguson, DAPL, Seattle WTO, state police, local police