INTRODUCTION
This is not a detailed discussion but is meant to only highlight the most common questions that arise in peaceful demonstrations or while organizing where the possibility of arrest exists. It is not a substitute for personal legal advice tailored to specific facts of a specific arrest.
1. Where can I pass out leaflets?
You can pass out leaflets in public spaces that are considered public property. The most common example is sidewalks and public parks. You have no legal right to pass out leaflets on private property, like stores and shopping malls, even if open to the public. There are several exceptions to this rule. If owners of private property let one group solicit they have to let all groups solicit. Some owners of private property, for purposes of the law, acquire a public character, for example public authorities such as stadium authorities. There is a very large open question about the increasing tendency of large private interests to “privatize” public spaces to ban free speech activity. Examples include, several casinos in Las Vegas and the Mormon Church in Salt Lake City1. Potential issues arising in this area include PPG Plaza in downtown Pittsburgh which the building owners contend is private.
2. Do we need a permit to demonstrate, and if so, do we have to pay for it?
You need a permit if you are demonstrating in a public park or if you will be marching in the street. Other than a nominal administrative or processing fee it is probably unconstitutional to charge a permit fee. 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 misunderstandings and unintended conflict with the police we suggest that the local police station be notified as a courtesy.
You probably need a permit for a sound system if you want to use one .It is an open question if you need a permit for a bullhorn. Legally we do not believe you do. However, the police often claim you do but we are usually able to work that out.
3. What are examples of activities I might be arrested for and those that I might not be arrested for?
a. Leafletting in public areas: Generally you will not get arrested for this unless you stray onto private property and ignore warnings to get off private property.
b. 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.
c. Civil Disobedience: (Blocking sidewalks, streets, refusing to leave private areas etc.) Generally, you are warned and given an opportunity to leave. This is not always the case and you could get arrested for this.
d. Marching in Streets Without a Permit: If police want to push it you can be arrested for this.
e. Arguing with Police: Police may overreact but it is a losing proposition to argue with them on the street. You often end up being charged with resisting arrest or assault on a police officer. Note, even if the police officer’s arrest of you is illegal, and even if his force is excessive, you do not have the right to resist the arrest or defend yourself.
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4. Have the police and Courts been more restrictive in the wake of 9/11?
Actually that began in the wake of the anti-globalization demonstrations in Seattle in 1999.September 11 and the “Patriot Act” passed shortly thereafter only accelerated these trends a little. Since that time we have witnessed the following:
a. More aggressive police tactics in major demonstrations.
b. The designation of “free speech areas”, or pens where demonstrators are directed and herded into.
c. Arrests for conduct that in the past would not have led to arrests.
d. More serious charges for conduct that in the past would only have led to minor citations.
e. Increased surveillance of activist groups.
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5. What could I get arrested for in demonstrations?
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 jail sentences of 90 days in jail. This 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. This can only be adjudicated in regular criminal court, usually involving several hearings, where the right to a jury trial exists.
c. If you demonstrate at federal buildings, and particularly at military bases, you could face federal charges, which are often more serious.
d. CAUTION: Avoid confrontations with police officers. If arrested, do not resist or struggle. Altercations with police officers can lead to Resisting Arrest (Misdemeanor) or Aggravated Assault (Felony) charges. This is where a danger of jail time arises.
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6. If there is a risk I may get arrested, are there things I should be aware of?
a. Do not get arrested if you are not a U.S. Citizen, it may impact your immigration status and harm your chances of obtaining Lawful Permanent Resident status or citizenship. A conviction for more serious offenses (“Aggravated Felonies” or crimes of “Moral Turpitude”, which both have very broad definitions) could subject you to deportation from the United States
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 Pittsburgh area, you should understand the Court hearings are not scheduled at your convenience, and you will be required to return to Pittsburgh for Court hearings.
d. Do not carry weapons of any kind, even a pocket knife. You inadvertently could find yourself facing a weapons charge.
e. If you take medication, do not assume you will have access to it while in custody waiting to be released on bail.
f. To avoid problems getting released on bail, carry a picture ID.
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 claustrophobic do not place yourself in danger of arrest. It could be several hours to one or two days before you are released, and you will spend much of that time in confined and small places.
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7. Will the police warn me prior to arresting me?
Probably. In most situations, warnings are first given by private security and then the police, and indeed 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 are not heard by everyone.
8. 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 one of the police stations. Then you will have (coordinated through the Union or the organization you are working with) to fill out a form on the Citation, entering a plea of not guilty and requesting a hearing. In this situation, you will be in custody only a short time or not at all.
b. Misdemeanor or Felony: If arrested for a misdemeanor or a felony, you will go through a processing procedure at the County Jail and Municipal Courts Building. 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. Please note that the processing before you are released on bail will take many hours, and could take as long as one to two 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.
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9. What will be the result of the criminal charges?
It depends on the factual circumstances, and each circumstance is unique. However, in over 1,000 arrests in Western Pennsylvania and Ohio involving peaceful demonstrations, leafleting, and civil disobedience, in the last 10 to 15 years, no one has been sentenced to jail except for some persons who, on principle, refused to pay a fine. We do remain concerned over the increasing tendency of the authorities to react more harshly in demonstration situations2.
10. 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. If you have never been arrested before in a demonstration, it is strongly encouraged that you participate in a civil disobedience training session before you place yourself in a position where there is a possibility of arrest. That tends to minimize confrontations with the police that may dilute the message of the demonstration, and tends to minimize legal entanglements.
11. Can legal observers be helpful?
Legal observers can be helpful witnesses and help keep track of who was arrested and who may have been injured in the course of an arrest. Legal observers need to understand that they should not put themselves in risk of arrest. Legal observers also need to understand that they are often targeted for arrest by the police.
12. Do I have to answer questions asked by police after I am arrested and will the police tell me what I am being charged with?
While sometimes police will tell you the charges at the time of arrest you usually will not know for several hours what the exact charge is. You have no obligation to answer police questions at the time of the arrest. Generally, police will 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. Miranda warnings are generally read to you by the Magistrate at the time of your Preliminary Arraignment, when bail is also set, and a date for a Preliminary Hearing is set.
13. How is bail set and what will happen if a refuse to give my name and address?
If you are arrested for a felony or misdemeanor 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 persons engage in bail solidarity and refuse to give that information, including refusing to give their name. People should understand the consequences of doing that, with some exceptions you generally will not be released on bail without giving that information3.
1 While there are bad federal court decisions out there, the Courts in those cases found that these were public areas open to leafleting.
2 Decisions often need to be made in the course of legal proceedings, the principal one often being whether to proceed to trial on the original charges filed or to accept a plea bargain to reduced charges. While it is encouraged, that people act as a group as much as possible, that decision is a decision each individual needs to make, with the advice of lawyers, the decision depending upon individual facts of the case and each individual’s circumstances.
3 Sometimes individuals have used bail solidarity in an attempt to clog up the system and force the release of persons and the dismissal of charges. Generally that only has a chance of working when hundreds of people are arrested and the system has no room to put everyone. It partially worked in Seattle in 1999 and did not work in Philadelphia in 2000. The system can easily absorb several dozen demonstration arrests.
