[md_]

Certainly anyone violently attacking law enforcement is not a peaceful protestor. But protestors are not a monolithic entity: the vast majority are clearly peaceful.

In a free democracy that values the right to peaceful protest, law enforcement and political leaders have to ask the best way to preserve that essential right for all citizens while keeping the peace. The question I would rhetorically ask—because the answer is fairly obvious—is whether sending poorly trained agents armed with lethal weapons and, apparently, improper instruction on probable cause to "keep the peace" achieves that end.

It's easy—and correct—to condemn acts of violence by protestors. But in a free democracy, we should hold the armed representatives of the people's government to a higher standard than we do a mass of protestors, among whom there are, no doubt, some provocateurs and law breakers.

This isn't an either/or proposition. One need not defend brick-throwers or arsonists in order to condemn arrest-without-probable-cause or the use of "less lethal" munitions against bystanders. That false dichotomy is what authoritarian regimes use to try to justify the wildly inappropriate—and, in the US, illegal—use of force to put down political opposition.

[makomk]

The feds have allegedly been arresting people "just" for dressing entirely in black - or at least, that's the narrative the press has been pushing to convince people that this is some kind of totalitarian military occupation. The thing is, the entire point of the Black Bloc tactic of dressing everyone like this is to make it as hard as possible to identify which specific "protestors" tried to burn down the federal courthouse, and which attacked law enforcement officers, and so on - in short, to turn protestors into a monolithic entity where crimes cannnot easily be attributed to any specific individual within the entity.

[md_]

First, I'm aware of cases where protest organizers have asked protestors to wear black out of solidarity with BLM, so I'm not convinced by the argument that this is the entire point of wearing black.

But even if we take that as a given, it seems to me that everyone wearing the same color clothing—and thus it being harder for the officers to distinguish protestors from each other—works against the probable cause argument, and not in its favor. I'm far from an expert on this, but my understanding is that in some (most?) applications of probable cause, individualized suspicion is a requirement; if officers are unable to distinguish protestors from each other, it seems like that would make it harder for them to meet the necessary standard to justify an arrest.

The argument that innocent protestors didn't make it easy for the police to distinguish them from criminals in their midst does not seem like it modifies the probable cause requirement; officers can't go around arresting (or, worse, using violence against) peaceful protestors simply because the officers are unable to easily identify the minority who are lawbreakers in their midst.

[md_]

A bit more info on the legal basis for arrests (and how this does not meet that standard): https://www.lawfareblog.com/unpacking-dhss-troubling-explana...