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If anything stays in your mind from the Abolish/Defund the police discourse from the early 2020s, it should be that the police aren’t known for their de-escalation skills. Remember, these are the people who have problems telling a person to wear a seatbelt without feeling threatened and dumping 96 shots in someone in just over 40 seconds. Part of the rationale of defunding the cops was that those resources could be used to support people who do a better job of pacifying discontent: social workers, teachers, chefs — you name it. Each time we rely on police officers to keep the peace, we also risk someone being put in a casket: Drew Washington was killed by the police after his family essentially called for a wellness check.
On April 9th, UC Berkeley Dean Erwin Chemerinsky hosted a dinner for third-year students. During the dinner, a student began a protest on the steps of his home. I won’t dive deep in to the details of her civil disobedience; you can read my colleague Joe Patrice’s take on it here. What I will do is caution getting legal advice from nonlawyers, especially when taking that inaccurate advice could mean that the police get called on non-violent protestors:
I won’t give much attention to the argument that a person’s home takes on the same rules as the school if it is hosting a campus event because I think it’s silly. The house is still your property and you still have the right to exclude — that is a staple of home ownership. Even if you’re hosting a campus event, you still get to lock doors and un-invite people from your house, even if the reason is arbitrary. What’s the alternative, let somebody impede on your right to free enjoyment for the next few hours because a flyer said the dinner was to last until 9 p.m.? Grow up.
The substantial part of the video that has over a million plays is the plainly wrong claim that you can only rely on the police to remove a trespasser if they do not go willingly. Seales’s advice would make a lot more sense if this were a landlord/tenant dispute (landlords do not have the right to use reasonable force to remove a tenant), but unless Malak Afaneh was renting a room in the dean’s house, that’s simply the wrong approach to what happened. Here’s a good heuristic: if you’re living in a state that has Castle doctrine and would let you kill an intruder, that state probably also has some sort of molliter manus imposuit rule in action. In short, it is totally fair game to use reasonable force to remove trespassers from your property without getting the police involved. Reasonable is the key word here — I’d have been penning a completely different article if Fisk and Chemerinsky decided to go full St. Louis Lawyer Couple in response to this protest.
I say all that to say this: Do not watch the above video and take it as a green light to call the police on protesters. Thankfully, Fisk and Chemerinsky took matters into their own hands before they rung up the boys in blue. JWeekly has coverage:
They were at first politely asked to leave by Chemerinsky and Fisk, the student said. The video shows only the end of the incident, after the protesters had been speaking there for three or four minutes, he said.
“They did not leave when they were asked the first 20 or 30 times,” he said. The student added that they finally left after Fisk said that while she was reluctant to call the police, she would do so if needed.
Just think, in what world would it have been better if Fisk and Chemerinsky did what Seales was suggesting and, instead of attempting to use reasonable force, they opened with calling the police on Afaneh. That would not have been a good look! Not to mention that you could also risk being the one getting protected and served. Let’s not forget about Twyla Stallworth:
Tl;dr: The First Amendment and Property law have some interesting intersections, but everything gets more complicated once the cops get involved. As long as someone isn’t an active threat, keep calling the police on them as a last resort. Catherine Fisk is a civil liberties scholar so it makes sense that she wouldn’t resort to calling the cops immediately, but things could have went much differently if this protest happened at someone else’s home.
Anti-Israel Protester Disrupts Berkeley Law Dean’s Backyard Dinner, Refuses To Leave [JWeekly]
Earlier: Berkeley Law Student Holds Protest Inside Dean’s Home… Which Is Not How The First Amendment Works
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.
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