Sit-Ins to Handcuffs: Brushes with the law

June 24, 1963. Demonstrators leave the First A.M.E. Church in downtown Los Angeles on their way to join a march of more than 1,000 people that culminated with a protest against school segregation in front of the Los Angeles Board of Education building.

CIVIL DISOBEDIENCE

What if I'm planning civil disobedience?

Civil disobedience is the active refusal to comply with certain laws as a form of protest. If you're planning to block an intersection or lie down in the middle of the street, make sure you know your rights before you begin. Take time to familiarize yourself with the practical consequences of civil disobedience, and with the steps you can take to minimize your chances of an extended stay in jail:
• Carry current identification. If you don't have ID, you may be taken to jail for a very minor offense instead of getting a ticket.
• Familiarize yourself with "Your Rights on Arrest" (page 17) and make sure you understand the likely charges and court outcomes of your activity (see "What Can the Police Charge Me With," page 16).
• Be aware of any consequences particular to you, such as:

• If you're a non-citizen, the government may communicate your arrest to the U.S. Immigration and Customs Enforcement, which could affect your immigration status and even result in your deportation.
• California law prohibits most private employers from asking about arrests that did not result in a conviction. However, if you apply for a job in law enforcement, in another state, or with the federal government, you may be asked about arrests as well as convictions.
• If there is a warrant out for your arrest, you may be held in custody.

• Be prepared: Tool up with resources from experienced protest groups (see Resources, page 14).

YOUR RIGHTS ON ARREST

What should I expect if I'm arrested at a protest?

It depends what you're arrested for. Under California law there are three different types of offenses: infractions, such as jaywalking or failing to yield to traffic in the street; misdemeanors, such as obstructing an officer or disturbing the peace; and felonies, such as assaulting an officer, freeing a prisoner, or vandalism causing more than $400 in damage.

Infractions:

For almost all infractions, if you can show a government issued ID, the police must give you a ticket (formally known as a "promise to appear") and release you on the spot unless you refuse to sign the ticket. 

Misdemeanors:

The police will usually take you to the station to be fingerprinted and photographed, but they should release you if you have identification and you sign a promise to appear. One exception to this rule is if the officer has reason to think that you will resume breaking the law if you're released.

Felonies:

The police may keep you in jail, but you have a right to bail immediately. If you don't bail out, within 48 hours a judge will review the police reports to see whether they show any criminal act. You must be seen in court within two business days to be informed as to whether you're being charged with a crime.

Many people arrested at protests are never charged and are released without going to court. If you aren't ever charged, you haven't technically been arrested. The police department should issue you a certificate saying you were merely detained.

If you're arrested in a federal facility or national park, or in some other situation where federal law applies, the process will be different.

March 5, 2009, ACLU Executive Director Anthony Romero, right, at a San Francisco demonstration the day the Proposition 8 marriage equality oral arguments were given.

What can the police charge me with?

Even if you view your expressive activity as lawful, there's a chance that the police will regard it as over the line. So, whether you're planning to engage in civil disobedience or not, you should be familiar with the California statutes most often invoked against demonstrators:
• Resisting arrest or delaying a peace officer (Penal Code Section 148)
• Disrupting a public meeting (Penal Code Section 403)
• Riot and unlawful assembly (Penal Code Sections 404-408)
• Failure to disperse (Penal Code Sections 409)
• Disturbing the peace (Penal Code Section 415)
• Trespassing (Penal Code Section 602)
• Refusing to obey a peace officer who is enforcing the Vehicle Code (Vehicle Code Section 2800(a))
• Attempting to free a person who has just been arrested (Penal Code Section 405a)
• Using force, a threat of force, or physical obstruction to interfere with a person’s right to reproductive health services or to attend a place of religious worship (18.U.S.C. § 248)

Know your rights:

• You have the right to remain silent. Use it. You must give your name and address but don't say anything else.
• You have the right to legal counsel. Ask for an attorney. Don't discuss your case with the police without consulting your attorney.
• You have the right to make three free local phone calls immediately after being booked and no later than three hours after arrest. A parent with custody of a minor child may make two additional calls to arrange for childcare.
• If you remain in custody, a judge will review your case within 48 hours and you must be taken to court within two business days.

April 11, 2008, demonstrators and the police converged as the Olympic Torch passed through San Francisco. 

LIMITS TO POLICE POWER

When can the police break up a protest or demonstration?

The police are charged with safeguarding the public during a demonstration, but they can't use their powers to stop you from exercising your free-speech rights. As long as you're observing reasonable time, place and manner restrictions, the police may not break up a gathering unless there is a "clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety . . . ." And police officers may not use their powers in a way that has a "chilling effect" on ordinary people who wish to express their views.

When can the police use force? How much force is legitimate?

The police may use reasonable force to break up a gathering or to detain or arrest a person who is violating the law. What is "reasonable" depends on all the circumstances. This gives the police some leeway while prohibiting force that any trained officer should know is excessive.

Are there constitutional limits to police intelligence–gathering and surveillance of political activists?

Overly intrusive and unnecessary police spying and intelligence gathering activities may violate constitutional guarantees of freedom of speech or privacy if it is targeting groups or individuals engaged in First Amendment activity absent some connection to suspected criminal activity. In 2003, Attorney General Bill Lockyer issued a manual entitled "Criminal Intelligence Systems: A California Perspective," adopting a position that the ACLU has advocated in the courts and to local government bodies: the state constitutional right to privacy requires that the police need an articulable criminal predicate to justify surveillance or intelligence gathering, particularly of groups or individuals engaged in expressive activities

Can uniformed officers take photographs or gather information at a protest?

Yes. The police may lawfully photograph or videotape events that are open to the public. However, California's right to privacy prohibits state and local officials from maintaining unnecessary information about the people of our state, so tapes that do not show any unlawful conduct should be destroyed.

Can the police demand that protesters remain inside a 'free-speech zone'?

Sometimes. For the government to restrict protesters to a certain space—or to keep them from a space that’s otherwise open—it must follow the usual rules regarding time, place and manner: Restrictions must be reasonably related to legitimate goals such as reducing an identifiable security risk, they mustn't prevent substantially more expression than is necessary to achieve those goals, and they mustn't be motivated by the protesters' message. The restrictions must also allow protesters to have a reasonable opportunity to effectively communicate their message to their intended audience.

Police alongside anti-racism demonstrators in Sacramento.

For more information, see www.aclunc.org/policepractices.

NEXT »