The International Human Rights Framework on the Right of Peaceful Assembly
The United States of America is a State Party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
The United States of America is not a party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the State has violated their human rights as protected under the Covenant.
At regional level, the United States is a signatory but not a party to the 1969 Inter-American Convention on Human Rights, Article 15 of which governs the right of assembly.
The Domestic Legal Framework on the Right of Peaceful Assembly
Under the First Amendment to the US Constitution, "Congress shall make no law abridging the right of the people peaceably to assemble, and to petition the Government for a redress of grievances".
There is no federal law restricting the right of peaceful assembly. With respect to local laws, CIVICUS reported in 2014 in the context of the United States' Universal Periodic Review as follows:
Within the United States, cities and states are endowed with wide discretion to establish the rules and procedures governing the right to assemble. A number of state and local governments require a permit to hold demonstrations of varying scales. Across the United States, demonstrators are often required to secure a permit when using amplifying devices, when demonstrations are not expected to remain on sidewalks or when the assembly is anticipated to hinder pedestrian or vehicular traffic. Such requirements necessitating explicit approval from relevant authorities act as a severe impediment to the free and unencumbered right to peaceful assembly and provide the authorities with excessive discretion to deny and criminalize peaceful protests. ...
... For instance, under the Municipal Code of Chicago, authorization is required for public assemblies that are likely to obstruct the normal flow of pedestrian or vehicular traffic. Moreover, in New York City, with a population of nearly 9 million, organizers of protests must obtain a permit to march on a public street and use amplification devices on public property. In Los Angeles, the authorities require permits to hold both stationary and moving demonstrations that may disrupt traffic. These and other impediments to freedom of assembly which are prevalent across the United States, patently disregard best practices put forward by the Organization for Security and Co-operation in Europe (OSCE) and the Special Rapporteur on the rights to freedom of peaceful assembly and of association which suggest that the states should require simple notification rather than authorization to hold a public assembly.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the State and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
In its 1989 judgment in the case of Graham v. Connor, the Supreme Court clarified the basic US legal standard for determining legality of any use of force by a law enforcement official: whether his or her actions were "objectively reasonable". This assessment must be made from the perspective of a reasonable officer on the scene, including what the officer knew at the time.US Supreme Court, Graham v. Connor, 490 US 386 (1989), Decided on 15 May 1989, at 396.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
With respect to the use of firearms, in its landmark 1985 judgment in Tennessee v. Garner the Supreme Court held that:
This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.
This is a rather lower threshold than the international standard, which does not allow use of firearms other than in a grave threat to life unless the threat is imminent. In contrast, in 2014, the US Customs and Border Police published a new Use of Force Policy and Manual that does respect international law, stating that
use of deadly force is “necessary” when the officer/agent has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer/agent or to another person.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
In its 2014 Concluding Observations on the United States, the Human Rights Committee did not address the right of peaceful assembly.
Views of Civil Society
According to Freedom House's 2021 report on the United States:
In general, officials respect the constitutional right to public assembly. Demonstrations on political and other topics are common and typically proceed without incident. In response to acts of violence committed in the course of some past demonstrations, local authorities often place restrictions on the location or duration of large protests. Since 2017, legislative initiatives aiming to criminalize or stiffen penalties for certain forms of protest, or to shield perpetrators of violence against protesters from legal liability, have been proposed in most states. Numerous such bills were introduced in 2020, and at least seven were passed into law.
In recent years, large protests and aggressive law enforcement responses have been sparked by highly publicized police killings of Black civilians, many of which were recorded on video. In May 2020, outrage over the killing of George Floyd by police in Minneapolis inspired one of the largest waves of protests in US history. Under the banner of the Black Lives Matter (BLM) movement, marches occurred in hundreds of cities and smaller communities. Estimated participation in May and June ranged from 15 to 26 million people, and daily protests occurred well into the summer in some cities. An overwhelming majority of the protests were peaceful, but in some settings they were accompanied by violence against police and significant damage to public and private property; local officials in certain cities complained of intimidating demonstrations outside their private homes. Human rights groups and academic experts found that aggressive police tactics were often the cause or prime escalating factor in violent episodes, and hundreds of instances of unprovoked or disproportionate police brutality were documented on video. At least 10,000 people had been arrested in connection with the protests by early June, though minor charges were frequently dropped.
Observers noted that police violence against protesters rarely resulted in accountability, and that police often exercised greater restraint toward anti-BLM counterprotesters and participants in separate demonstrations against COVID-19-related restrictions, many of whom were armed and displayed far-right or White supremacist symbols. Several people were killed in confrontations involving armed protesters, counterprotesters, or vigilantes during the year, including one prominent shooting by a left-wing gunman in Oregon who was later killed by police.
The Trump administration and its political allies frequently denounced the BLM movement and offered unqualified support to police, downplaying the extent of police violence. The president threatened to deploy active-duty military units in cities experiencing unrest, and in June a combination of federal law enforcement agents and National Guard members used chemical irritants and physical force to clear peaceful protesters from a plaza adjacent to the White House. In Portland, Oregon, where nightly protests repeatedly ended in clashes with law enforcement agents, city and state officials accused the administration of purposefully inflaming tensions by deploying federal agents to protect a federal courthouse; the agents’ uniforms at times lacked any identifying insignia, and some detainees were taken away in unmarked vehicles.
According to CIVICUS:
Protests – both planned and spontaneous – are an integral part of civic life in the USA. Demonstrations on a wide range of issues take place every day throughout the country and most of them are peaceful and well-policed. The shooting dead of unarmed black men including Trayvon Martin, Michael Brown and Eric Garner, however, sparked a series of nationwide protests against the unlawful use of deadly force by police. Participants in some of those protests were intimidated by police in heavy-duty riot gear with military-grade weapons and equipment. Excessive force was actually used against demonstrators in some instances including the 2011 Occupy Movement and the 2014 Ferguson protests.The latter included the use of tear gas and rubber bullets against demonstrators as well as assaults on journalists by the police. There have been additional concerns regarding the creation of ‘free speech zones’ by local authorities and some universities, where protestors are corralled into defined geographic spaces, often far from the places where they could be seen and heard. While regulations vary by state, in some places protestors are required to secure authorisation for specific forms of demonstration, including where amplification is used or where there will be a disruption to traffic circulation.