February 2017Strategy

ACLU lecture offers insights on protest strategy

Three days before the Trump inauguration, the DC chapter of the American Constitution Society hosted a "protesting 101" lecture with two first amendment lawyers -- Art Spitzer, Legal Director of the ACLU DC, and Mark Goldstone, a defense attorney who has represented a range of protesters over three decades.

Spitzer began the event with a quick history of large protest movements that converged on the nation's capital, noting Coxey's army, the Bonus Marchers, the 1963 March for Jobs and Freedom, the 1971 May Day protests, and the March for Women's Lives.

Goldstone built off Spitzer by noting the terrain of protesting in the District of Columbia, saying that protesters ought to consider whose property they are protesting on to prepare themselves for which law enforcement body they will face. Goldstone and Spitzer agreed that the Park Police are the most accommodating, that the Metropolitan Police (DC's municipal force) facilitate protest and that the least receptive are the Capitol Police.

Goldstone got into tactics, pointing out that the law says that the police must treat those without a permit as if they had a permit. The benefit of a permit is the presence of police protection. Worth noting, though, is that a permit is required to protest outside of a residential home.

Goldstone quickly switched gears and stressed that the "dividing line" in outcomes of being arrested was determined by whether one commits property destruction or violence. In order to not cross this line one should know the legal definitions of terms, in particular that obstructing or intimidating a police officer is considered assaulting an officer. This point was stressed: do not seek "street" justice with an officer in any form. In terms of property destruction, Goldstone reminded the audience that any damage over $1000 is a felony.

One of the main points that Goldstone stressed was taking advantage of "post and forfeit," a procedure that allows you to pay around $50-$100 to have the case against you dropped without admitting guilt or being convicted. If you have cash on you, you can pay at the station and pretty much be done with the matter without repeated trips to court. The drawback is that the arrest can stay on your record. Goldstone also noted that pre-trial diversion programs, including monitored volunteer work, could get a case dismissed.

Other warnings were made, including that one can be charged for "unlawful entering" of a public area if a police office makes a "lawful order" for you to leave and you remain. One might also be charged with violating municipal regulations related to traffic if you do not obey lawful orders. Goldstone quipped that officers have broad authority to direct protesters actions. He did repeatedly say, however, that the Metropolitan Police intend to facilitate protest.

Spitzer and Goldstone agreed that if your intention is to be arrested in order to show commitment to the issue, one should communicate this to the authorities in advance. They remarked that there is a three-warnings rule in most cases, and without "pre-notification" it can take some deal of effort to be arrested. What is more, pre-notification is a good idea to ensure that no one is hurt or charged with serious offenses when officers do not know the intention of protesters. On the subject of police violence Spitzer noted that police officers frequently lie, and that a common lie is that they cannot be photographed. They can be photographed and they must give you their name and badge number if asked, but you have to be careful not to interfere with arrests, lest you be charged with assaulting an officer.

In their concluding remarks, Goldstone argued that there will be drastic changes to the court system, but it will take years to filter down. He worried that there would be a crackdown on post-and-forfeit programs. Spitzer agreed that there would be a dramatic change in the courts, and remarked that sentencing has gotten easier in the last decades, but sentences will get stiffer.

Spitzer brought an ACLU pamphlet entitled "Demonstrations in DC: Know Your Rights" which is available online and worth reviewing. It recommends following five steps to protect your rights:

  1. Plan ahead, by knowing where you are at all times in case you are arrested, bring $100 in cash for "post and forfeit," enough of your medications for three days, and phone numbers of family and your lawyer.
  2. Know your police forces by studying their badges.
  3. Know dos and don'ts for interacting with police. Keep your hands visible, though you can videotape them. When being questioned say "I wish to remain silent" -- do not talk to police other than to say your name and address, if asked. When being searched say "I do not consent to this search." When being arrested say "I wish to remain silent. I want a lawyer."
  4. Know what can happen to you if you are arrested. You will be booked at the local precinct, Park Police headquarters, or the Capitol. You will be either given a court date and released, allowed to "post and forfeit," or detained at Central Cell Block, 300 Indiana Ave NW, until brought to court.
  5. Know locations and phone numbers for police forces.
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