Friday, February 22, 2013

Know Your Rights Everyone!

Know Your Rights FAQ – Guide to Peaceful Demonstrations and Protests in Pennsylvania

All persons have rights under the United States Constitution to freedom of speech, to peacefully assemble, and to petition the government for a redress of grievances. This guide addresses some common questions that arise with respect to demonstrations and protests.  It is not comprehensive and is provided for informational purposes only.  It is not intended as legal advice and should not be so construed.

Do we need a permit to demonstrate?
You need a permit if you are demonstrating in a public park or if you will be marching in the street. You do not need a permit if you are marching on the sidewalk or simply gathering in a small demonstration on the sidewalk. In those situations, to avoid unintended conflict with the police it is a good idea to notify the local police. Note that while you have a right to march, picket, leaflet, and demonstrate on public sidewalks, you do not have a legal right to block the sidewalks so police may insist that you keep a path free on the sidewalk.  You probably need a permit to use a sound system.   You do not need a permit to use the “People’s Mic.”  Bullhorns are a gray area.

Risk of arrest for:
a. Peaceful Demonstration (Rally speakers etc.): Generally, you do not risk arrest so long as sidewalks and public access areas are not being blocked. In those situations someone should be designated to be a contact with the police in case there are problems.
b.  Leafleting in public areas: Generally, you will not be arrested for this unless you stray onto private property and ignore warnings to get off private property.
c. Civil Disobedience: (Blocking sidewalks, streets, refusing to leave private areas etc.)  It is likely you will be arrested for acts of civil disobedience. You may be given a warning and an opportunity to leave. This is not always the case and you could get arrested without a warning.
d. Marching in Streets Without a Permit:  You may be arrested for this. Police should warn you to get out of the street before arresting anyone, but not everyone may hear the warning.
e. Arguing with Police: It is best to have a very polite and friendly police liaison to limit the chance of arguments between demonstrators and police.  Police may react badly to demonstrators asserting their rights to protest and charge people with offenses such as failure to disperse or defiant trespass.  You may end up being charged with resisting arrest or assault on a police officer. Note that even if the police officer’s arrest of you is illegal, and even if his force is excessive, you do not have the legal right to resist the arrest or defend yourself at the time of arrest.  You have other legal options to redress an illegal arrest after the arrest.

If arrested, what charges might I face?
a. The most common charges stemming from arrests in peaceful demonstrations are Disorderly Conduct, Obstructing Traffic, or Trespass, all summary offenses carrying maximum fines of $300 and maximum sentences of up to 90 days in jail. These charges can be heard and adjudicated by a magistrate, usually involving one hearing. It is rare for anyone to receive a jail sentence on these charges.
b. The most common misdemeanor charges include more serious levels of Disorderly Conduct and Trespass as well as Obstructing Administration of Law and Failure of Disorderly Persons to Disperse. These charges can only be adjudicated in regular criminal court, usually involving several hearings, where the right to a jury trial exists.
c. If you demonstrate on federal land or within a federal building, you could face federal charges, which may be more serious.
d. CAUTION: Avoid confrontations with police officers during the course of an arrest. Confrontations may lead to increases the charges and the numbers of people arrested (usually without any political benefit coming out of it).  If your group chooses to go limp as a form of non-cooperation, be aware this may result in increased charges. Altercations with police officers can lead to Resisting Arrest (Misdemeanor) or Aggravated Assault (Felony) charges. This is where a danger of jail time arises.

If there is a risk I may get arrested, are there things I should be aware of?
a. If you are not a U.S. Citizen, an arrest may impact your immigration status and harm your chances of obtaining Lawful Permanent Resident status or citizenship. A conviction for offenses classified by immigration law as “Aggravated Felonies” which can include misdemeanors, or crimes of “Moral Turpitude” could subject you to deportation from the United States.  If you are in an undocumented immigration status, any arrest could lead to being placed in deportation proceedings.
b. If you are on probation or parole, you are required to report any arrest to your probation or parole officer. An arrest can be considered a violation of probation or parole.
c. If you do not live in the area in which you may be arrested, you should understand the court hearings are not scheduled at your convenience, and you will be required to return to county in which you were arrested for court hearings.
d. Do not carry weapons of any kind, even a pocket knife. You may inadvertently find yourself facing a weapons charge.  Do not carry any illegal substances.
e. If you take medication, do not assume you will have access to it after arrest.
f. To avoid problems getting released on bail, and/or to avoid lengthy processing, carry a picture ID with a valid address on it.
g. If you are a minor, your case may be handled separately from others in Juvenile Court, and you might not be released until a parent or guardian comes to pick you up.
h. If you are part of an affinity group, designate one or more support persons who will avoid arrest to contact friends and family and provide group members with support through the process.

Will the police warn me prior to arresting me?
In most situations, private security and then the police first give warnings, and some charges require a warning by the police. This is particularly true when the incident involves a simple trespass or perhaps leafleting on what might or might not be private property.  However, warnings are not always given, and sometimes when given, particularly in large demonstrations, not everyone hears them.

What will happen when I am arrested?
a. Summary Offense: If you are arrested for a summary offense, you will be given a citation on site by a police officer or at the police station. Then you will have to fill out a form on the citation, entering a plea of not guilty and requesting a hearing.
b. Misdemeanor or Felony: If arrested for a misdemeanor or a felony, you may go through a processing procedure at the county jail and Magistrate’s Court.   It is also possible for some misdemeanors (where there are no problems with the police and you have valid identification showing a legitimate local address) that you may be released without that processing, and will later receive a summons in the mail directing you to appear in court on a certain date.  If taken into custody you will be interviewed by the bail agency, photographed, and fingerprinted. You will then be taken before a magistrate who will set a date for a Preliminary Hearing (usually within 7 to 10 days) and will set bail. If you are from the area and have no prior record, you should be released without having to post bail.  The processing before release on bail will take from several hours to 1-2 days. At the Preliminary Hearing, the magistrate will decide if there is sufficient evidence to hold the case for regular criminal court involving several hearings and potentially a jury trial.

Do I have to answer questions from the police?
No!  You have a constitutional right to remain silent.  Exercise your right!  In order to be released, you should tell the police your name and present a valid photo ID.  You may need to provide additional identifying information if bail is being set.  Beyond that, politely tell police officers that you don’t want to answer any questions without an attorney present.  Be aware that in some instances it may be a crime to make false or misleading statements to government officials, even unsworn statements.   It is always a crime to make false statements to federal officials, even if they are not law enforcement officials.  It is best to remain silent. You have no obligation to answer police questions at the time of the arrest. You should provide your name and contact information to ease the process of being released on bail or without having to post bail.  Police may not read you “Miranda warnings” at the time of your arrest, and that failure only becomes important when the police case against you depends on a statement you made after you were in police custody.  The Magistrate generally reads Miranda warnings to you at the time of your Preliminary Arraignment, when bail is also set, and a

 

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