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18 THE UNIVERSITY OF THE DISTRICf OF CoLUMBIA LAW REVIEW
the demonstrators' representatives on the scene, if any, or by bull-horn admonitions.
Failing that, it is usually a better policy for the police to wait out limited
object-throwing, under the protection of their riot gear and shields, rather than to
disperse a large group because of the violence of a few. Only if a significant proportion
of a group becomes disorderly are dispersal and arrests appropriate.
These mass arrests of nearly 200 additional people were another instance of
the D.C. police overreacting in circumstances where they were well in control and
could have managed the incident without arresting innocent demonstrators.
2. Unlawful Use of Arrest and Detention Just to Clear the Streets
The arrests of September 27, 2002 were also unlawful and lacking in good faith
because no effort was made to record the name of each arresting officer who
could testify to a particular individual's violation of the law. The only lawful basis
for arrests is to charge and prosecute those arrested. Because it is virtually impossible
to show probable cause without such a contemporaneous record,15 and because
there were no exigent circumstances preventing such recording of the
approximately 400 arrests, it is clear that the police made such arrests with no
intention of establishing probable cause.
The failure to create such records has an additional serious consequence: if
there were some demonstrators who did break the law, they also could not be
prosecuted because there was no way to establish their guilt. The District's taxpayers
will ultimately have to pay them compensation for false arrest, even if
their arrests were proper, because of the decision by M.P.D. management to
dispense with lawful arrest procedures. This costly police abuse has now been
banned by both the Abbate Settlement Agreemenf 6 and Consent Order,77 and
by section 110 of the First Amendment Rights and Police Standards Act of 2004,
both of which are discussed in Part IV infra.
3. Police Assaults
D.C. police were also accused of unjustifiably beating and pepper spraying
protesters and onlookers,78 and an investigation of police violence was demanded
by a law professor. 79 We know of no instance in which M.P.D. management has
formally held an officer accountable for an unwarranted assault in a
demonstration.
75 As noted in the text accompanying footnote 33, in Sullivan, 478 F.2d at 967, the court held
that arrests without contemporaneous field arrest forms executed by the actual arresting officer were
"presumptively invalid," a presumption rebuttable only by the Government showing probable cause
in a particular case.
76 Supra note 48.
77 Supra note 2.
78 Fernandez & Fahrenthold, supra note 15.
79 Prof. Jonathan Thrley, supra note 68.