Monday, March 18, 2013

Know Your Rights!

A National Lawyers Guild attorney prepared a Know Your Rights document for us recently that is derived from experiences during more urban actions, but includes material for us to learn well.

This document is primarily for Pennsylvania and may be referenced for actions in New Jersey as well, although specific laws may be different. Please consult an attorney if you have more specific questions. We hope that Kinder Morgan security and law enforcement officers viewing this blog will become as familiar with our rights as we are.

Click To View Printable Version


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 date for a Preliminary Hearing is set.

What else should I be aware of?
If you are going to a demonstration where there is a risk of arrest, or if you are engaging in civil disobedience, it is helpful if you do it with an affinity group and/or persons who can do support work for those who get arrested, including getting the names of people arrested to lawyers and legal observers. You should participate in a nonviolence and civil disobedience training session before you place yourself in a position where there is a possibility of arrest. Such training tends to minimize confrontations with the police that may dilute the message of the demonstration, and tends to minimize legal entanglements.

Can legal observers be helpful?
Yes! Legal observers can be helpful witnesses and monitor the conduct of the police. Legal observers
should not engage in crowd control, speak to the media, interfere with an arrest in progress, place
themselves in danger of arrest, provide legal advice (unless an attorney in the jurisdiction) or
provoke actions. Legal observers collect information and their presence alone can sometimes deter
unconstitutional law enforcement conduct. Videotaping of the event can provide important evidence of the peaceful and lawful nature of the demonstration. Legal observers should receive training in advance.

Will the police tell me what I am being charged with?
The police may tell you the charges at the time of arrest you, but it is also possible that you may not know the exact charges for several hours.

How is bail set and what will happen if a refuse to give my name and address?
If you are arrested for a misdemeanor or felony, and taken into custody, you will be interviewed by a court employee on background information (name, address, phone number, references etc.) for purposes of setting bail. If you fail to give the person background information bail will not be set. Sometimes people engage in bail solidarity and refuse to give that information, including refusing to give their name. Understand that the consequences of doing that are that you likely will not be released on bail.

What are the consequences of an arrest?
If you are arrested for any offense you have the right to a trial. For a summary offense, you are not
entitled to a jury trial. It is possible that the charges may be dropped before proceeding to trial. If you
have no prior arrest record, you will likely be offered the option of Accelerated Rehabilitative Disposition (ARD) for summary offenses and some misdemeanors. ARD does not require you to plead guilty to the charge. If you comply with the conditions of ARD the charges will be dropped. If you plead guilty or proceed to trial and are convicted, you risk a fine of up to $300 and jail time of up to 90 days for a summary offense. It is unlikely that someone without a prior record would receive jail time for a summary offense. The fines and jail time are greater for misdemeanor offenses. For summary offenses where one is found guilty, or for any offense where you complete ARD, or for any offense where one is found not guilty or the charges are dismissed, you can apply to have your record expunged. You should note that for certain types of government employment and for some professional licenses, you may be required to report all arrests and convictions, even if your record has been expunged. Where ARD has been completed or where the charges were dismissed or you were found not guilty, you can apply for expungement immediately. If convicted of a summary offense, you must wait five years and have no subsequent convictions to apply for expungement.

Appendix - Pennsylvania Statutes and Regulations on Trespass and Disorderly Conduct

18 Pa.C.S § 3503(b) Criminal trespass

(b.1) Simple trespasser
(1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or remains in
any place for the purpose of:
(i) threatening or terrorizing the owner or occupant of the premises;
(ii) starting or causing to be started any fire upon the premises; or
(iii) defacing or damaging the premises.
(2) An offense under this subsection constitutes a summary offense.

17 Pa. Code § 21.80
(a) A person who violates this chapter or disregards instructions or warnings given by a State Forest officer or interferes with a State Forest officer in the performance of the duties of the officer may be ordered to leave State Forest land.
(b) A person who refuses to leave State Forest land, after receiving an order to leave from a State Forest officer, commits an act of criminal trespass under 18 Pa.C.S. § 3503(b) (relating to criminal trespass).

18 Pa.C.S. § 5503. Disorderly conduct

(a) Offense defined. A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(1) engages in fighting or threatening, or in violent or tumultuous behavior;
(2) makes unreasonable noise;
(3) uses obscene language, or makes an obscene gesture; or
(4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.
(b) Grading. An offense under this section is a misdemeanor of the third degree if the intent of the actor is to cause substantial harm or serious inconvenience, or if he persists in disorderly conduct after reasonable warning or request to desist. Otherwise disorderly conduct is a summary offense.
(c) Definition. As used in this section the word “public” means affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, any neighborhood, or any premises which are open to the public.

18 Pa.C.S. § 5507. Obstructing highways and other public passages

(a) Obstructing. A person, who, having no legal privilege to do so, intentionally or recklessly obstructs any highway, railroad track or public utility right-of-way, sidewalk, navigable waters, other public passage, whether alone or with others, commits a summary offense, or, in case he persists after warning by a law officer, a misdemeanor of the third degree. No person shall be deemed guilty of an offense under this subsection solely because of a gathering of persons to hear him speak or otherwise communicate, or solely because of being a member of such a gathering.
(b) Refusal to move on.
(1) A person in a gathering commits a summary offense if he refuses to obey a reasonable official request or order to move:
(i) to prevent obstruction of a highway or other public passage; or
(ii) to maintain public safety by dispersing those gathered in dangerous proximity to a fire or other hazard.
(2) An order to move, addressed to a person whose speech or other lawful behavior attracts an obstructing audience, shall not be deemed reasonable if the obstruction can be readily remedied by police control of the size or location of the gathering.
(c) Definition. As used in this section the word “obstructs” means renders impassable without unreasonable inconvenience or hazard.
 

Stop The Tennessee Pipeline! Copyright © 2011 | Template design by O Pregador | Powered by Blogger Templates