By Timothy E. Zerillo*
The First Amendment, and the freedoms of speech and assembly it provides, have given us some of our proudest moments. From the March on Washington in 1963 to the Black Lives Matter protests of today, the right of the people to be heard in protest is paramount.
The National Association of Criminal Defense Lawyers (NACDL) has made one of its core missions to end systemic racism in criminal justice. Moreover, NACDL strongly supports the First Amendment, and the rights of those who peacefully protest in an effort to draw attention to systemic racism and police brutality.
As a result, NACDL has developed a First Amendment Strike Force, for the purpose of providing a well-credentialed group of lawyers to represent protesters who have been arrested. The First Amendment Strike Force also seeks to educate both lawyers and the public related to the rights of protesters and how to best defend protest arrests in court. You may find the NACDL First Amendment Strike Force page here.
It is this author’s hope that you live in a community where peaceful protests are encouraged. However, the recent use of Department of Homeland Security authorities in Portland, Oregon and elsewhere have raised alarming concerns as to governmental interference in lawful protests.
This show of military-esque police force is an attempt by the government to chill the First Amendment right to protest and assemble. While several lawsuits have been filed to try to prevent such governmental interference in protests, it is wise to assume that if you attend a protest, that you could encounter the police. Following are my suggestions to best position yourself for that encounter.
1. Be Polite. I realize this might sound trite, but it is true. Politeness helps when you interact with the police, especially when emotions are running high. This does not mean you need to grovel to the police. It just means that if you are being detained out or even grabbed off the street it will not help if you call the law enforcement officer every name you might be thinking of him or her at that time. Staying businesslike in your interactions with the police is your best bet.
2. Ask if You Are Under Arrest. If you are detained or pulled aside by law enforcement, ask “Am I under arrest?” If the officer says “yes”, do not say anything more (other than as described in number 3, below). If the officer does not give you a clear answer, or hedges on answering the question, ask the officer “Am I free to leave?” If the officer does not tell you you are free to leave, you are under arrest in my book.
3. Keep Quiet. Other than the limited questions above, I strongly suggest you remain silent in all communications with law enforcement officers. That means you do not give the officer an interview later on at the police station, you do not have a chat with the officer in their police cruiser on the way to the police station and you do not tell another officer (who seems like a nicer person than the one who unfairly arrested you) your side of the story.
There are only three exceptions to this general rule:
First, as soon as possible, ask the office if you can make a phone call. If you are permitted to make a phone call, please note that the police may listen to that call if it is not with a lawyer. So, if you are calling your Dad, for example, you want to tell him that you were arrested at the protest, where you are, if you have bail, and so on. However, do not tell your Dad why the officer was so awful and what really happened. That call may be recorded and used as evidence against you.
Second, if you have been arrested you will likely get booked. It is acceptable to tell the booking officer basic biographical data about you. By that, I mean your name, address, date of birth and the like. However, do not tell the officer anything about what happened at the protest or the officer who arrested you.
Third, to remain silent, you may actually have to say you wish to remain silent. This sounds crazy, and it is. However, the United States Supreme Court has held in one case that a person who was in custody and was literally silent, did not assert their right to silence.¹ In essence, this case says that you must unambiguously invoke your right to remain silent before the police are required to stop questioning you. All you need to say is “I refuse to speak with you. I want to talk to my lawyer.”
4. Do Not Physically Resist. I realize that it may be legal in some jurisdictions to lawfully resist an illegal arrest, but it is usually not helpful. Often, that resistance results in the officer piling on a more significant charge. For example, in the scuffle of resisting, the officer may claim that he or she was assaulted by you. If you are going to be arrested, do not physically fight it.
5. Video Recording. You may wish to record your interactions with the police. There is nothing wrong with you doing so in a public place. If you are recording on your phone, make sure your phone is locked and do not consent to give the police your password.
6. Photograph Injuries. It is not uncommon to have a police officer handle you roughly when you are taken into custody. If you have marks on your body, photograph the marks or injuries as soon as you can. Make a note of the date of the photograph. Have another person observe the injuries as a witness and have them note the date and time of their observation, along with a description of what they observed. If you have large bruises or marks, measure them, and take photographs or a video of the measurements.
7. Protest With A Friend. Try to use the buddy system when protesting. While you can video record your interactions with the police, as described above, you would be better off to have an agreement with a friend that you will stick together, and record each other if there is police interaction. The buddy system is a good safety valve at protests.
However, make sure your buddy also agrees to follow these rules. If your buddy intends to throw a glass bottle at the first law enforcement officer he sees, it is likely that you will get caught up in the ensuing chaos. In essence, the buddy system works well, as long as you have the right buddy.
Thanks to all of you who have risen up to protest systemic racism and police brutality. Please stay safe as you continue to peacefully protest.
About the Author
*Tim Zerillo is a criminal defense lawyer in Portland, Maine. He serves on the Board of Directors of the National Association of Criminal Defense Lawyers and is a Past President of the Maine Association of Criminal Defense Lawyers. Tim is the author of the book Defending Specific Crimes, published by James Publishing.
- Berghuis v. Thompkins, 560 US 370 (2010).
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