(Material courtesy of ACT UP)
Most groups do at least some planning prior to their demonstration. In addition to deciding the choreography of the demonstration, your group should plan whether to obtain a police permit, whether and how to include a “civil disobedience”, and other practical matters. If you are unsure about your rights it’s a good idea to discuss your plans with an attorney.
The First Amendment permits speech, however controversial, in “public forums” (streets, sidewalks, parks, plazas and, in contemporary times, shopping malls). The protected expression includes “symbolic speech” such as wearing masks, candlelight vigils, and, of course, flag-burning.
While the government and the police may not restrict the content of the speech (including, for example, vulgarities directed at the police), they may impose reasonable “time, place and manner” restrictions on speech. Thus, for example, the police may control the demonstration to keep it from endangering public safety or order. And some places have ordinances against demonstrations too close to churches, counsellates, hospital and certain other buildings.
Generally a speaker cannot be prevented from provoking or exciting a crowd. However, if a speaker provokes a crowd to the point of causing property damage or personal injury (Incitement to Riot) or of another violation of the law, she or he can and certainly will be stopped by the police.
Potential demonstrators often ask “can the police do this….” referring to a particular type of restriction on demonstrating. The correct legal answer often boils down to whether or not the restriction is a reasonable time, place or manner restriction under the circumstances — something a judge might have to decide later on if there happens to be a trial on the matter. However, the practical answer to the potential demonstrator’s hypothetical is that if the police feel like it, they can and will do what they want and worry about the legal consequences later.
If a demonstrator believes her or his speech rights are being violated by a police officer, the matter should be brought to the attention of the legal observor, if there is one, or the demonstration organizer. If those options are not available, it may help to politely but firmly request to speak to the officer in charge. Often, however, that is the officer who ordered the action in the first place. Arguing with the particular police officer will rarely change the officer’s mind. Refusing to obey the officer will usually result in an arrest.
Permits should be obtained if the demonstration is going to involve a bullhorn or any other electronically amplified sound. A permit should be considered for any demonstration that will be large (more than 100 persons or so) or will move from one place to another. If a permit is not obtained, the police, who will inevitably appear, may drastically curtail the action or prohibit it altogether.
Obviously the issuance of a permit alerts the police to the demonstration and guarantees their presence and usually their advance placement of wooden barricades at the demonstration site (where the police want them). However, even if a permit is not obtained, the police will appear anyway and although they may allow the demonstration to continue, they may be more intolerant than they would otherwise have been.
If a permit is denied, we recommend that the group call an attorney. She or he may be able to obtain the permit either by re-requesting it at the precinct or by going to court.
Persons planning on being arrested should have police-acceptable identification. After the arrest the police transport the arrestee to a police precinct for processing. Unless the charge is a felony, the demonstrator will probably be released as long as her or his identification gives the police reasonable assurance that they know who the person is and where she or he lives. The best identification is a picture driver’s license, but most official-looking identifications issued by an agency, organization or company will usually do. The purpose of learning the address is that, in the event that the demonstrator does not appear in court on the scheduled court date, the authorities could find him or her if they tried (which they would probably never do for a demonstration arrest).
Persons planning on being arrested will be at least superficially searched. If the police discover illegal drugs or anything else illegal they will probably not release the person and will add on additional charges.
Persons with outstanding warrants are advised not to get arrested because the warrant may cause the police not to release them from the police precinct. Also, arrest presents risks to non-citizens. While the police do not yet specifically screen arrested persons for immigration issues or automatically communicate with the Immigration and Naturalization Service, non-citizens are required to explain arrests (not just convictions) on many INS applications. Similarly, persons who later may want to apply for jobs involving the government, security or child care may be investigated or asked about arrests, not just convictions, and therefore should weigh participation in a CD very carefully.
The most common charges against demonstrators are Disorderly Conduct and Trespass. Basically Disorderly Conduct means about what it sounds like it means — acting in a manner the police find disorderly — and Trespass means being present on property without the permission of the rightful custodian of the property. These charges are both “violations” meaning they are not crimes and are about as serious as a moving traffic violation. For these offenses the arrestee is almost always released from the police precinct after being given a ticket informing him or her where and when to go to court.
The usual civil disobedience features members of the demonstration blocking building entrances or traffic and being arrested. Typically, shortly after the cd begins, the police officer in charge will stand in front of the demonstrators and give a warning to cease the action while the other officers, brandishing handcuffs, encircle the demonstrators. When the demonstrators persist, the arrests begin and the arrestees are taken to police vans for transport to a precinct.
The next most common charge is Resisting Arrest, which means that the arrestee allegedly exerted force to prevent the police from effecting arrest. (A demonstrator might be given this charge if a police officer uses unreasonable force since the officer wants to establish an excuse for using force.) This offense is a crime, an “A” misdemeanor (and therefore affords the demonstrator to the right to a jury trial). A person is usually released from the precinct with this charge but has a greater chance of being held until court than the above charges.
The courts do not agree on whether or not “going limp” and forcing police to pick up a demonstrator constitutes resisting arrest. Therefore, while persons who go limp risk a Resisting Arrest conviction, there is also legal authority that that is not sufficient conduct to prove Resisting Arrest.
The next most common charge is Riot in the second degree which relates to urging 4 or more persons to to cause property damage or personal injury, or participating in the damage or injury. If there are more than 10 persons involved and there is an injury (including injury to the a police person) or damage, the charge will be a felony – Riot in the first degree – and the arrestee will not be released from the precinct.
In transport to, and at the precinct, arrestees should refrain from discussing the demonstration with the police. While persons arrested should be cooperative about giving their name, address, job, and like information for the purpose of securing their release, there is nothing to be gained from discussing the incident. If you do it, as they say on TV, everything you say can and will be used against you in court.
At the precinct the arrestees are written up and usually released. If a person is charged with resisting arrests, fingerprints may be taken, which slows the process considerably since it takes approximately three hours for the results of the fingerprint search to be returned to the precinct. An arrestee may or may not be given a phone call. If there are any felony charges, the demonstrator will not be released. Persons released receive either a “Summons” (which looks like a parking ticket) or a “DAT” (Desk Appearance Ticket) which state the date and place of the court appearance for the charge.
Those arrested persons not released at the precinct go “through the system”, meaning that they remain in police custody up to the time 24 to 72 hours later when they see a judge in court. The journey involves at least one police precinct, a place called Central Booking (a pre-court clearing house for all the county’s arrestees), a mass pen in the court building, and finally a court “pen” where the arrestee will be allowed to speak to an attorney. (All persons are assigned an attorney unless they already have one.) The judge decides whether to release or detain the arrestee until the next court date; most demonstrator defendants are released. The through-the-system experience is one to be avoided. (For example, see Tom Wolfe’s only slightly exaggerated description in the novel Bonfire of the Vanities.)
Whenever arrests are expected, the demonstration group should appoint a person to monitor the arrests. This person should make sure the arrestees have good identification, keep of list of the persons arrested and, if possible, go to the police precinct to make sure things go well there. The monitor should bring paper and pencil to the demonstration and be prepared to make notes. If there is police brutality, the monitor should record the incidents, the names of witnesses and the names of the officers involved. A camera is also helpful for such events.