What is an ACLU legal observer?
ACLU legal observers are volunteer citizens who monitor public events like protests and demonstrations in order to observe police behavior, document arrests, and monitor the treatment of individuals detained. The ACLU observers assess law enforcement practices for constitutional compliance and build records of individual interactions with the police. In addition , they network with groups interested in basic legal rights and restrictions on police powers and in local law enforcement policies. The legal observers typically do not engage in other activities of the event which is the way that they keep their public image as neutral facilitators and prevents confrontation with the police or other individuals in attendance. ACLU legal observers have played an important role in the capacity of watchdogs on the exercise by police officers of their powers and limits under law and the Constitution. The presence of ACLU observers may deter some police misconduct in the first place and lead to appropriate investigations and accountability after the fact.
The history of ACLU legal observers
The ACLU legal observer program was established in the 1960s to monitor conflicts between civil rights demonstrators and law enforcement. It was born out of the Civil Rights Movement, when African Americans boldly asserted their constitutionally protected right to peaceful assembly in the face of opposition from local governments and law enforcement authorities. The program is not a litigation tool, but it does help preserve important evidence that can be used in civil rights lawsuits. From 1965-1970 in particular, the number of legal observers that were sent to the field grew significantly. In a race riot in Compton, California, for example, legal observers witnessed police officers wielding bulldozers to clear protesters from a street. At an anti-nuclear march in Washington, D.C., white ACLU legal observers were used by Black activists to cut through police lines. And in the wake of a violent police raid on a Stonewall Inn in late June of 1969, legal observers were deployed to protect LGBTQ people from law enforcement targeting their communities.
The ability of the ACLU to conduct appropriate and timely reviews of police actions was called into question when four of the remaining ACLU chapter offices refused requests to send legal observers to a protest for a congressional resolution condemning the anti-LGBTQ repressive policies of the Bahamian government in April of 2005, although the main ACLU office in New York City did send observers. The Bahamian activists decried what they called the "homelanding" of LGBTQ people, meaning that American cruise ships from which US citizens jumped off in Fort Lauderdale came to dock at Nassau and "homeland" (as opposed to "just visiting") for a week or two before returning to the United States. In effect, the ACLU chapter offices declined to send observers because of their insistence that the Bahamian activists pay for their services. This created lingering concerns that the ACLU would decide not to observe demonstrations because it disagreed with the political aims of the demonstrators, particularly given the fact that the New York City ACLU viewed the resolution as "purely symbolic" and therefore not worthy of being monitored. However, the National ACLU Legal Observer Coordinator’s Office soon reminded all ACLU affiliates that "the National ACLU is for the purpose of making efforts to ensure that the civil liberties of all people are protected," and as unequivocal as possible per the Legal Observer Policy Manual, "as a matter of policy, if a group approaches the ACLU of Florida requesting observer coverage, we will provide Legal Observers."
Responsibilities and duties
When an individual calls himself or herself a legal observer under the auspice of the ACLU, he or she assumes a hefty burden and responsibility. When done correctly, this means that he or she can gather information for a court case should lawful rights of an individual have been violated. Often, an individual might wear many hats in connection with being a legal observer. While one might be the "legal observer," he or she might also be a witness to a victim or organizers for the advocacy group that he or she is observing for.
Both the legal observers and partners must agree to certain parameters prior to the event, starting with what constitutes when observation is authorized i.e. legal observers should not interfere with the police, and should always keep their hands visible at their side; observers must wear their badges/certificates such that the observer is visible and legible at all times; and observers must be willing to communicate with people (i.e. an individual who approaches with a question). If the observation occurs at an event, an ACLU representative must be contacted, and the legal observer must relay the observations. A legal observer should attempt to document all incidents of arrests, force, etc. on videotape or on paper, but never bring these items with him or her to avoid arrest.
However, there are additional duties that must be undertaken by the legal observer. He or she must examine the policies of the police department to glean a better understanding of what is permitted and what is not. He or she must also know the location of the local courthouse and have a good idea as to how to get there in roughly five minutes. In addition, the staging area for a large public demonstration should be visited to determine the route of the event, and its proximity to the courthouse.
Before the public demonstration, the following items should be checked or obtained: Are materials (i.e. chairs, tables, signs, etc.) required for the demonstration permitted at the site?; Will there be a counter demonstration, and if so, are they required to stay within a designated area?; The exact location of the appropriate assembly area and route followed by the event; and whether it is lawful for the group to carry an object with a handle (i.e. signs with handles are prohibited in many areas).
A legal observer may be permitted to ask where an individual is being taken and for what reason, that is also permitted in most instances. If the legal observer is contacted by the police, he or she asks the police officer three questions, but does not identify him or herself: (1) "Are you detaining me?" If the answer is no, then the observer leaves. If the answer is yes, continue to second question. (2) "Am I under arrest?" The officer must give the legal observer a reason why he or she is being arrested. If the officer refuses to provide a reason, he or she will be told that this refusal is on the record. Similarly, the legal observer will tell the officer that he or she will not resist a search without a warrant: (3) "Are you going to search me?" After an arrest, the legal observer should give the police officer his or her contact information before leaving the event, and should seek legal counsel with no delay.
Training and qualifications
When someone wants to become an ACLU legal observer, they must undergo an extensive training. There is a full training day and a background check that includes an interview. If the observer passes the training, they are appointed by an ACLU board member in one of our many regions. Organizers are informed of the appointment and at that time can make them available.
The Observer Coordinator and regional contact persons for the area of the Observation is given a final copy of the appointment. The new observer is added to the ACLU database and announced in the legal observer email list to welcome you to our team. A piece of advice to many legal observers who are still new (because it is a volunteer position it is difficult to sign up too often) , is not to take too many assignments right away. First a new observer should stick to doing a street corner where it is quiet for several hours. You will learn how to fill out your observation form and if you have any questions about what to do in a particular situation, you are in a place where you can call or email the regional contact person with your questions. Later on, you will be ready to observe powerful, loud and large crowds. But first, as the saying goes, you must walk, drive, take a taxi or taxi bike before you run or run bike. You must learn to walk before you can run. And legal observers must learn to walk before they can run.
Impact and importance
The presence of ACLU legal observers at protests is a crucial countermeasure to curb potential law enforcement misconduct. When police know that observers are present, those charged with monitoring peaceful gatherings are more likely to abide by the law themselves. The power of legal observers has been demonstrated on many occasions over the past few years alone.
During the protests that accompanied the trial over the fatal shooting of Michael Brown in Ferguson, Missouri, local police engaged in highly questionable tactics, such as arresting journalists without warning and directing physical quantities of tear gas at peaceful protestors. Police have also been known to use kinetic impact projectiles, sometimes called "bean bag" rounds, as a less lethal means to disperse crowds. One ACLU of Missouri legal observer was struck by a bean bag round during a 2014 protest in St. Louis. The Institute for Justice filed a federal civil rights suit on behalf of that protestor, Christiana O’Connell, and noted that state and local law enforcement disciplined no officers who behaved violently.
In Minnesota, cops pepper-sprayed two legal observers in 2016 during a state capitol rally advocating for criminal justice reform, as the Star-Tribune reported. A counter-racist protestor was arrested without being read his rights and pepper-sprayed twice during a separate 2016 state capitol rally.
During the Dakota Access Pipeline protests, it was widely documented that law enforcement adopted a high-pressure, high-quantity spray of the riot control agent pepper spray in order to disperse activists and journalists, occasionally at near point blank range. An independent journalist, Jenni Monet, was among the affected, and documented her experience on video. "I was pepper-sprayed directly in the face," she shrieked on her phone in footage later viewed online. As her tears streamed down her face, Monet exclaimed, "I can taste it in my mouth, in my tongue, in my eyes… There is a heavy amount of bleach in this. It’s very, very strong." Monet told Democracy Now’s Amy Goodman that the legal observer contingent at the protests helped cream the police behavior in the face of overwhelming evidence otherwise. Lawyers and activists armed with cameras stood at distance and exposed the treatment of the protestors at large to the public, mitigating its effects. "A lot of times, the cops would gaff up, and let that pepper spray out on people," Monet remarked. "It was powerful enough to make people fall to the ground and start vomitting."
These precedents have been built upon.
At the August 2017 Unite the Right Rally, which was hosted by white nationalists in Charlottesville, Virginia, legal observers helped keep the police accountable when they escalated tensions and behaved violently. They captured an exchange between police chief Al Thomas and the crowd that compared Thomas to the violent forces of white nationalism. "Understand your power," he told protesters. "And use it wisely." ACLU representatives peppered the area to capture the moment on camera.
Although critics have dismissed legal observers as advocates for the alt-right, at recent protests, they have taken advantage of the First Amendment to shine a light on police harassment of racial justice activists and members of the press. Legal observers have helped to demonstrate how police fail to protect First Amendment rights to freedom of speech and assembly.
How to get involved
Unlike volunteers who work with the ACLU’s various other volunteer programs, there is no application process to begin volunteering as an ACLU legal observer. Instead, individuals are invited to observe a particular event. Individuals interested in volunteering attend a training program on legal observing, which is led by a current member of the legal observing team. This is followed by an observation session at either a demonstration or a similar event.
While the training program does not require participation in future legal observing as a condition for taking part, and observers are not officially associated with the ACLU , the First Amendment to the U.S. Constitution and the Washington Constitution set forth the freedom of assembly as legally protected rights.
Legal observers do so in groups of three to twelve individuals. They wear bright yellow or bright orange "Legal Observer" vests (supplied by the ACLU) to ensure their visibility to police forces as well as to protect them from any potential participants who might target them. In Washington State, legal observers are trained to use two tools: 1) a 3-inch thick foam core board on which to take notes and 2) a digital camera to document any illegal actions. These notebooks and cameras do not have any ACLU identification on them. This is intentional.
If you are interested in becoming an ACLU Legal Observer, you should look into these upcoming trainings: