In times of protests, riots, and general civil unrest, the government is charged with preserving the peace. But who specifically is supposed to maintain order? The answer hinges on the circumstances involved and which law enforcement agency has jurisdiction.
Often multiple law enforcement agencies will work together to quell civil unrest. In cases where local resources become overwhelmed, the state can call in the National Guard. Only in limited circumstances can the federal government become involved.
In the United States, the federal government holds a different law enforcement role than state governments. The framers of the Constitution did not want a national police force. Rather, through the Tenth Amendment to the U.S. Constitution, general "police powers" were left to the states.
Under their police powers, state governments have broad authority to make and enforce laws necessary to preserve public health, safety, and general welfare. The federal government, on the other hand, carries a narrower policing role.
Most states divide law enforcement responsibilities by jurisdiction. Local governing bodies can establish law enforcement departments, and in many states, you'll find city or municipal police departments and county sheriff departments. You'll also find certain agencies with statewide jurisdiction, such as state patrol units or state investigative agencies. Examples are the Minneapolis Police Department, Los Angeles County Sheriff's Department, Kentucky State Police, and Georgia Bureau of Investigation.
A law enforcement agency and its officers are typically authorized to enforce laws only within their geographic boundaries. So an officer working for a city police department can provide policing services within the city limits. A county deputy would have arrest powers within the county limits. And state troopers patrol state highways. Other agencies with statewide jurisdiction often assist local departments by providing additional resources and support, especially in complex investigations or when local resources have been exhausted.
Federal law enforcement power comes from Congress. The U.S. Code gives more than 80 federal agencies authority to enforce laws that fall under their agency jurisdiction. For instance:
Approximately 100,000 full-time federal law enforcement officers provide policing protection compared to more than 700,000 full-time state and local officers. (Bureau of Justice Statistics (2019).)
The National Guard has a unique, dual mission involving federal and state governments.
State governors. State governors can activate the National Guard to assist with local or statewide emergencies (such as riots and protests). Assistance can take on various forms, including law enforcement.
President. Under the Insurrection Act, the President can also call upon (or "federalize") the National Guard in limited circumstances to suppress insurrection and enforce federal law. (10 U.S.C. §§ 251-253 (2020).) This law also allows the President to deploy military troops for the same purposes. However, the authority given under the Insurrection Act does not amount to martial law, which is the displacement of civilian authority by the military. In fact, a separate law prohibits the use of active-military troops to conduct civilian law enforcement activities, such as patrolling the streets. (18 U.S.C. § 1385 (2020).)
In times of civil unrest, immediate threats to public safety require government action. Generally, the law enforcement agency responsible for quelling civil unrest will depend on where and how the situation is unfolding.
If protests and rioting are occurring within city or county limits, that city's police department or the county's sheriff department will typically have primary jurisdiction. When protestors block or march down state highways or interstates, the state patrol will likely be the agency in charge.
Civil unrest, though, doesn't always have nice geographic boundaries. In cases where rioting or disorder spills over to another city or county, multiple agencies could have jurisdiction. In these instances, the agencies can act within their specific jurisdictions or agree to give officers the power to enforce laws in multiple jurisdictions.
Local resources—including manpower and equipment—can be quickly overwhelmed during times of civil unrest. In such cases, a law enforcement agency can request assistance from neighboring cities or counties or the state.
The role of federal law enforcement in quelling civil unrest is more limited. Federal law enforcement agents can work with, or provide assistance to, local and state law enforcement authorities who request assistance. Often, this arrangement requires a written agreement between the federal and local agencies to establish a chain of command and give federal officers arrest authority in the jurisdiction.
A federal agency independently has the power to enforce violations of federal laws that fall within the agency's purview. But federal agents exercising this power when it comes to mass gatherings and protests has proved controversial—and legally tricky. For instance, President Trump sent federal agents to Portland, Oregon, during protests in 2020. According to the federal government, the agents were from the Department of Homeland Security and had federal law enforcement authority to protect federal buildings, grounds, and property. But Portland sued the federal government, alleging that federal agents acted beyond their authority by arresting and clashing with protesters.
More commonly, when protests turn violent or overwhelm local and state police, the state governor calls in the state National Guard. National Guard units can assist law enforcement in various ways, from providing support and equipment to assisting emergency responders and barricading roads.
The President can also call in the National Guard in three circumstances: at the state's request, to enforce federal law, or to protect citizens' civil rights (if the state refuses to do so). Often, this power comes into play when a governor asks the President to activate a National Guard unit. But the President can also activate the Guard by sidestepping, or acting over the objection of, the governor. For instance, when the Alabama Governor blocked black students from entering a university building in 1963, President Kennedy federalized the state National Guard to enforce desegregation laws.
The President can also deploy military forces to suppress insurrection (again, this is not the same as martial law). Examples where Presidents have used this authority include the L.A. riots and desegregation efforts in the South. In the case of the L.A. riots, the California governor asked the President to deploy military troops to assist law enforcement and the state National Guard in quelling the violence. In a few instances, Presidents have deployed military troops on their own initiative to control insurrection—most notably during the civil rights movement. For example, President Eisenhower deployed Army troops to Arkansas to assist in school integration of black students, after the Arkansas governor, in violation of the law, activated the state National Guard to block black students from entering a school.
Regardless of which entity is policing an area during a period of civil unrest, you have constitutional rights. If law enforcement uses excessive force against you or wrongly arrests you, for example, you can get legal help.
If you are facing criminal charges, you should speak with a criminal defense attorney. If you want to know whether you have a viable claim against the government for violation of your rights, consider consulting a civil rights or personal injury attorney.
And keep in mind that several organizations, including the ACLU, provide information on protesters' legal rights.