Are undercover law enforcement agents inciting violence in Minneapolis, and is this legally allowed?
A longstanding and successful law enforcement tactic is the infiltration of protest groups by undercover agents and the use of informants embedded within these groups to pass along sensitive information. Law enforcement agencies have also been known to employ the use of an “agent provocateur” to incite violence among protesters in an effort to provoke an aggressive police response and discredit the protest movement.
The use of agents provocateurs has been well-documented in recent protest movements from around the world, from Hong Kong to Canada to the United Kingdom to the Occupy movements in the United States. As demonstrations against the police killing of George Floyd have taken place in Minneapolis and then across the country, allegations have been made that undercover police were among the first to engage in violence, presumably to goad demonstrators into doing the same.
In one example of a suspected agent provocateur, videos taken by bystanders show an individual wearing a gas mask and body armor using a hammer to smash a window at an Auto Zone. Upon being confronted and asked to stop, the man threatens the protesters and walks off. Meanwhile, a video taken at related demonstrations in Columbus, Ohio seem to show officers from the Columbus Police Department breaking windows of the Ohio Theater.
The Minneapolis Police Department and the offices of the Minneapolis City Attorney and US Attorney in Minnesota did not return messages asking for clarity on the use of this tactic by the Minneapolis Police Department, though the MPD did issue a statement denying that one of their officers was the man breaking windows at the Auto Zone. But the use of informants and agents provocateurs is a standard tool in any law enforcement agency’s repertoire and should be expected at any demonstration.
It’s worth exploring the legalities of these maneuvers with the expectation that such clandestine and disruptive tactics will continue as long as there are demonstrations against law enforcement agencies, corporations, and other major pillars of the state status quo as a means to discredit the demonstrations and justify harsher police tactics.
The term “agent provocateur” does not appear in any federal, Minnesota, or Minneapolis laws, which is no surprise because the term does not have favorable connotations. The laws that would most likely cover this behavior are those governing undercover police work, and these laws can vary from jurisdiction to jurisdiction, from state law down to local statue. According to the Minneapolis Police Department’s Policy and Procedure Manual, “ Undercover officers shall not intentionally engage in entrapment and shall not commit any act that constitutes a crime” (10–202, Section II) but the Manual does not get into any more specifics about the parameters of this mandate.
Part of the difficulty of determining the legality of law enforcement provocateurs is because courts have been hesitant to define these actions because it would acknowledge tactics that the general public would likely find inappropriate, said Gary T. Marx, Professor Emeritus at MIT who has written extensively about state surveillance and the infiltration of radical groups.
Moreover, there may be some reticence to use these tactics because of the unpredictability of inciting violence, danger to the officers or informant, and the law enforcement tactics this would reveal, he said. “The downside to the agency or organization is much, much too great, especially with the with risk of [officers and tactics] being identified,” Marx said.
But an agent provocateur doesn’t have to engage in illegal violence to be effective, as there are many ways to derail the efficacy of a group. Provocateurs are tasked with wrecking an organization and can get really get creative in how they do so, says Tom Hastings, Director of the PeaceVoice Program at the Oregon Peace Institute and Assistant Professor in Portland State University’s Conflict Resolution Department.
“They worm their way into the main core of organizers — can help create discord and conflict that they will not allow to be resolved,” Hastings said. “They will point an organization in directions that are not helpful, redirecting the attention of the group making it really ineffective.”
An agent provocateur might even introduce the idea there are infiltrators in the group to heighten suspicions and paranoia and thereby weakening trust among members. This tactic was used in the 1960s and was effective to the degree that at one point Black Panther chapters stopped accepting new members because they didn’t know who they could trust, Hastings said.
Demonstrators should also be aware that ideologically opposite groups are likely to attempt an infiltration for the same counterproductive and chaos-sowing purposes. Far-right organizers have been vocal about this tactic in past demonstrations, while other agents provocateurs might be operating on their own, motivated to take the law into their hands or turn people in, Marx said.
It is of course important not to use any kind of force against an agent provocateur if unmasked in the course of a demonstration, as, law enforcement or civilian, they’re protected by law against harm. There are state and federal laws making it a crime to deliberately reveal the identity of undercover agents or threaten informants and have laws that in most circumstances protect the identity of informants and undercover agents from being revealed in court. Confrontations can of course be dangerous as well. Undercover officers from the California Highway Patrol were outed during a march against police brutality in Oakland in 2014, leading to one of the agents pulling his gun on bystanders.
Hastings decried the dubious ethical value of the use of agents provocateurs, which “certainly violates everything we stand for in our national mythologies and how we think of ourselves.” Nevertheless, activists should beware of the power of this kind of infiltration. History has shown that organizations, no matter how strong, can be susceptible to the influence of inciting agents and greatly compromised by events that result.
The FBI ran a secret program called “Racial Matters” starting in the late 1950s intended to besmirch Martin Luther King, Jr., while a plant in the American Indian Movement was revealed to be working on behalf of the FBI in 1975 after causing discord within the movement, “encouraging rash, inflammatory acts,” and stealing more than $100,000 in donations. Agent provocateurs had a hand in the enormous federal crackdown on the environmental and animal rights movements of the 1990s and 2000s, securing heavy sentences by goading activists into taking part in bomb-making conspiracies and gathering materials to build explosives. (One defendant was released nine years into nineteen-year sentence when previously withheld documents revealed he was entrapped by the undercover agent.)
Activists can work to preempt the reputation-damaging work of an agent provocateur by being vocal about the strictly nonviolent ethos of their organization, Hastings said.
“You can’t prevent attempts at infiltration but if you’re really transparent and frequently proclaim a nonviolent code of conduct and are open about [your emphasis on non-violence], you establish the public perception that is crucial to the success of your campaign,” he said.
From there, the public’s trust in what you do helps reinforce the idea that it’s an outside actor actually causing the problems.
“That’s all an agent provocateur can do, throw a brick through a window in an attempt to incite violence — you can denounce any such action as completely unaffiliated with [your group],” Hastings said. (It should also be noted that following days of protest in Minneapolis, activists returned to areas where demonstrations took place to clean up neighborhoods and storefronts.)
As long as demonstrations continue, activists can expect undercover law enforcement to be present among the ranks of demonstrators. Demonstrators should stay vigilant and focused on their mission. As one activist on Facebook summed it up, “Anyone who is showing up and trying to pressure you into violence, and might be dressed just a little too perfectly, is more than likely a plant. Keep an eye on them and firmly re-state that you are here for justice and solidarity, not violence any time they try to convince you to try and do something like smash a store window, esp. of a small business. Agent provocateurs will love to throw communist and anarchist slogans in your face to try and get you to do this. Do not give in. Any economic system is a system, not a storefront, and doctors don’t cure disease by breaking someone’s leg.”