Legal Memo

We absolutely cannot guarantee anything in the legal process, but there is a long tradition of civil disobedience and similar actions in DC, with fairly consistent responses. If you intend to participate in the action, we strongly request that you attend a non-violence training and an action briefing before the action. Trainings will occur every evening – please plan to attend the night before you participate in the action. This will include a legal briefing about what to be prepared for and expect.

We encourage every individual participating in the action to be prepared to be responsible for their own safety and well being and to the degree possible, other participants as well.  While our resources are limited, we are committed to providing training, on-site legal observers at the action,  a legal support hotline for arrestees, on call National Lawyer’s Guild attorneys and a support crew to greet you when you get out. We are working with the DC chapter of the National Lawyers Guild to provide basic legal support and information for participants, but we cannot guarantee any other support beyond that.

There are no guarantees, but similar actions in DC have been treated very consistently by authorities.  Typically, anyone arrested in civil disobedience such as this get either a citation (like a traffic ticket), or a simple misdemeanor charge (such as Trespass, or Failure to Disperse, or Incommoding).  Participants should plan to spend a night in jail. IF anything changes, and police begin to release participants earlier, we will inform you at the training. We’re anticipating that arrestees will have the option to post-and-forfeit when they appear before a judge the next day. People who choose to not pay this fine may remain in custody longer, have to return for a future court date, or face additional charges.  Currently, the charge we’re anticipating is Failure to Obey a Police Officer (see FAQ below), which is equivalent to a traffic ticket and carries no jail time.

If you’re participating as part of a group, please consider designating a legal support person and connecting them with our legal support working group.  If you are at higher risk, we strongly encourage you to contact an attorney, and please let our legal support working group know so that we are aware of your concerns and issues.

SPECIAL NOTE REGARDING AUGUST 27TH AND 28TH: Because of the dedication of the Martin Luther King Jr. memorial, the parks police staff will be stretched thin on these two days, and arrest and processing will likely take extra time.

Here are a few key tips:

(1)  Bring ID, $100 post-and-forfeit fee, plus $5 for Metro fare, understand how you will get back from jail, be accountable to the broader group and the Action Guidelines

(2) Pay attention to each other’s well being while in the legal system, assist others to afford the post-and-forfeit fee, assist coordinating transportation from jail, be a legal support person, be accountable to the broader group and the Action Guidelines.

(3)  The legal support hotline is reserved for calls from jail only, and the number will be available at the non-violence training the day before the action.  We anticipate that participants will spend the night in jail and are providing this number in the event of unforeseen circumstances or emergencies.

(4) Your first appearance in court will not be a trial. You will appear before a judge who will determine if you are eligible to post and forfeit; if not, you will be given a future court date.

(5)  Post and forfeit – if someone is arrested in the District of Columbia for certain traffic and a number of lower level criminal offenses, the D.C. Code allows the defendant to post and forfeit the collateral ($100) rather than having to appear in court for a trial, thus waiving his or her right to a trial. To post and forfeit is not an admission or adjudication of guilt as far as the court is concerned.

(6) You may be at a higher risk level if you have pending court dates, warrants, have citizenship or immigration issues, have an extensive history of civil disobedience.  Your arrest could be handled very differently. We encourage people in these situations to consult a lawyer, and recognize that your situation could be very complicated for yourself, and the rest of the action. We are not encouraging minors to participate.  We understand that the legal system treats transgender people, people of color, those who are differently abled, and people with health concerns differently. If you have concerns about your potential treatment, please get in touch with our legal support team at the training to discuss your risks.

FAQs:

Q: Where will I be held, and how will I get back from the police station?

A:  The Metropolitan Police Department is the primary city police force, responsible for the public streets and non-federal buildings.  However, the US Park service is in charge of the “picture postcard” area where the demonstration is being held.  The US Park service will have jurisdiction in the event of arrests, and the most likely place people will be processed is their Anacostia station, located at 1901 Anacostia Drive S. E., Washington, D. C. 20019.  The Anacostia Metro station is located within walking distance with entrances at Shannon Place and Howard Road near Martin Luther King, Jr. Avenue SE, and we are also scouting short-cuts.  Participants are encouraged to self-organize rides as necessary, and a support team will be waiting for people who get released to do jail out-take and provide directions and info.

Q:  What’s the procedure for collecting property I’m arrested with?

A:  It’s best not to carry anything but the essentials with you, as everything you have on your person or in your bag will be inventoried and catalogued piece by piece, which slows processing down for everyone else.  If you forget and bring personal property with you, it should be returned when you get released.  If you end up going to court you may have to return to the Anacostia station (where we’re anticipating people will be taken) to collect your property.

Q: Should I carry my post-and-forfeit money on me or will you be collecting it before hand? Do they take credit cards? Will they take a personal check?

A: Participants should have the money with when they are arrested. You will pay to the police at the station; sometimes money can be passed in, but not always. It’s better if you have your photo ID and money on your person.

Q: Can minors participate in the action?

A: We’re requesting that minors not participate in the sit-in part of the action, but they’re welcome to help out as part of our support team providing water, taking photos, etc.. If you’re comfortable with her being on her own, she’s also welcome to help out in the training space while you wait to be released – cooking, set up, cleanup, etc.

Q: When you say three days including one for possible legal action, does that mean the courts are open in DC on the weekend?  If I arrived on a Friday and demonstrated on a Saturday, would the possible legal action occur on a Sunday or are courts closed and so I’d have to stay through Monday?

A: DC court is closed on Sunday. In considering your travel plans, know that a Saturday arrest means a Monday arraignment. You will probably still be offered the option to post-and-forfeit, and if you choose not to accept you will be released with a court date.  For local residents, you may be released directly from jail with a citation, and will most likely appear before the judge on Monday.

Q: What will happen if I get arrested twice during the course of the action? Will I be eligible for post-and-forfeit the second time?

A: You will not be offered the post-and-forfeit option upon your second arrest, may face additional charges, and may have to return to DC for court.  Due to the limited nature of our legal support and our desire to support everyone at all stages of the legal process, folks getting arrested more than once presents potential complications.  If you have time to stick around and are thinking about getting arrested more than once, please consider being a legal support person for another affinity group instead.  Your experience of having recently gone through the process could be very helpful to others and your assistance providing support would be extremely appreciated.  See our hand out for details on being a legal support person.

Q: Does this demonstration have a permit, or are we by attending breaking a regulation?

A: As long as you are on the sidewalk in front of the White House and keep moving you aren’t breaking any regulations.  The action organizers have applied for permits to be on the sidewalk in front of the White House for the entirety of the action. We don’t need a permit for the closed portion of Penn. Ave., NW (1600 block) because that’s technically DC jurisdiction.  There is a requirement to keep moving while demonstrating in the “picture postcard” zone on the sidewalk in front of the White House sidewalk (36 CFR 7.96).

Q: What should we do if there are opponents trying to disrupt the action or people who start to act outside of the agreed Action Guidelines?

A: Dealing with inappropriate escalation (or confrontation from our opponents) is going to be a main duty of the support team that will be on site for every action. They’ll be ready to talk with folks who seem to be getting out of hand, and to help direct energy to the more strategic, productive parts of the action.

Medical Conditions – IMPORTANT

Q:  What should I do if I’m willing to risk arrest but need to take medications?

A:  If you have a medication that you need to take while you’re being processed, the police won’t administer it to you.  They’ll take you to the ER, which you’ll be charged for, and have the doctors there administer your medication.  Also, if you ask for medication or otherwise indicate that you’re having a health issue, the police will ask if you have a known ailment.  If you answer yes, you’ll also be taken to the ER.

If you have a medication that you need to bring with you, carry it in your prescription bottle and if possible, get a letter from your doctor indicating that they have prescribed this medication to you and why.

Internationals/border crossings

We’ve been receiving a number of good questions from Canadian allies who are interested in coming and risking arrest in this action.  We’re in the process of consulting with Immigration specialists and hope to have specific answers in the next couple days.  An important piece of information we gleaned from our recent meeting with the Park Police is that internationals and green card holders WILL NOT be offered the post and forfeit option, which means spending the night in jail.  Infractions generally don’t have negative immigration consequences for internationals, but the potential for complications exists which is why we’re seeking expert advice.  Thanks for your patience while we sort things out.

Priors/pending court dates

Q: How will my prior arrests or convictions affect my ability to be eligible for the post and forfeit option?

A: If you’re on probation or parole, or have open warrants, you should consider acting in a support role for the action.  All of these situations could be legally complicated for yourself and the legal support working group.

If you’ve recently been discharged from probation, it may be a good idea to bring paperwork with you that proves you’ve completed your probation and your case is over.

If you have felony convictions or multiple arrests for similar types of civil disobedience in DC, you may be held overnight before you’re released.

Q: How will my pending court date affect my ability to be eligible for post and forfeit?

A: You could forseeably be held overnight.  There’s no court on Sunday so if you get arrested on Saturday you’ll be there until Monday.

Employment/Education

Q: I am a teacher and/or volunteer in schools, could getting arrested limit my ability to do this (CORI check)?

A: The short answer is that a trespass arrest should NOT interfere with working/volunteering in schools.  We are anticipating a post-and-forfeit option for arrestees which would not result in court dates but if for some reason you received one, the arrest should still not interfere as long as you show up for any hearings, if need be, and pay any fines/do community service.
The longer answer is that, with lawyers, teachers, and selected other professions, what they’re looking for is “crimes of moral turpitude”; this generally includes sex, drugs, fraud and violence.
The best answer is to check with your local teacher’s union.  Even if you’re not currently a member, they’re almost certain to be helpful and supportive.

Q:  I’m a Federal employee (postal worker).  Would my job be at risk legally if I’m arrested?

A:  Getting arrested shouldn’t have any consequence to your employment (Congressmen and women get arrested all the time!) but if you have or are applying for a job with security clearances, then there could be an investigation into the nature of your arrest.

Q:  If I have a family member who’s one day hoping to work for the government, will having this kind of arrest affect a family member’s ability to be employed by the federal government?

A:  No it wouldn’t.  If that person is going for a security clearance there might be an investigation but an arrest for civil disobedience of a family member shouldn’t have any bearing on their chances for employment.

Q: Could getting arrested impact my college admissions?

A:  The short answer in this situation is that no, it shouldn’t.  Getting convicted of a “crime of moral turpitude” such as a drug related charge, fraud, violence or sexual impropriety could affect your ability to go to law school or medical school or have some bearing on undergraduate admissions.  However, being arrested for a citation or minor misdemeanor for civil disobedience should not affect your ability to get accepted by a college or go to law school or medical school.

With law and medical schools some ask about arrests, others about “charges” and still others only convictions. The applications also range widely in their opinions of whether traffic violations “count”, (which is equivalent to what we’re anticipating arrestees will be charged with) and if so, which kinds, and about whether you must report incidents that have been sealed or expunged. Many schools ask further that you provide an official statement of the charges and/or disposition of the case, obtainable from your lawyer, the court, or the relevant law enforcement agency.

Common Charges for Civil Disobedience in DC

Q: What will I be charged with if I’m arrested at this action?  Will participating in this action result in a criminal record?

A: Below is a list of common charges for political arrests in DC excerpted from the DC National Lawyer’s Guild.  While there are no guarantees, if you choose to post-and-forfeit you will not be convicted of your charges or receive a resulting criminal record beyond what you may already have.

Failure to Obey a Police Officer. This is the charge we think is most likely for people risking arrest in this action.  It’s an infraction (petty offense), which is one step down from a misdemeanor and equivalent to a traffic ticket.  Often called “failure to disperse,” this charge is possible when the police decide to close a street or clear a path and you refuse to move. The order they give you must be “lawful,” which means that if the police issue an unconstitutional order, there is no offense in ignoring it. But police authority is very broad and we won’t know if the order was unconstitutional until trial. If the order turns out to have been lawful and you failed to obey it, you can be fined $100-$1,000 (no jail time). DC Muni. Reg. §§ 18-2000.2 & 2000.10.

Crossing a Police Line (CPL): A municipal regulation which prohibits passing through an established police line. Someone could be charged with this if they hypothetically tried to join the sit-in after the police issued their order to disperse and set up a police line.  It brings a possible fine of $100-$300 (no jail time).

Incommoding-Blocking Passage. This is blocking vehicle or pedestrian traffic on the streets, sidewalks, and other walkways. This is by far the most common charge we see when protestors sit down in the street. Sidewalks are trickier because you generally have a right to engage in free speech activities on the public sidewalks; but if you so clog them that no one else can use the sidewalks, you might be charged with incommoding. Maximum penalty is a $500 fine and/or 90 days in jail. DC ST § 22-1307.

Disorderly conduct. This law was recently rewritten: it does not include incommoding, but includes general disorderly conduct: loud, threatening or abusive conduct; obscene language; inciting or provoking violence; urinating or other disorderly conduct in public. Maximum penalty is a $500 fine and/or 90 days in jail. 22 DC Code § 1321.

Unlawful entry on property (trespassing). Remaining on private property after being told to leave is punishable by a fine up to $100 and/or up to 6 months in jail. Fr government buildings and the surrounding land, there must be some reason that you have been asked to leave, such as to prevent disruption or to maintain security. DC Code § 22-3102.

Resisting or interfering with a police officer.  You may not stand in the path of an officer (especially if they are trying to make an arrest) or pull away from them or help another person to pull away from an officer trying to make an arrest.  Resisting arrest is unlawful even if the officer has no rightful basis for arresting you. DC now has a misdemeanor Assault on a Police Officer charge, which includes resisting or interfering with an arrest; the penalties are less than the felony APO, which is usually reserved for striking an officer.

Failure to appear. If you have ever been arrested before and did not come to court when instructed to do so, there is a possibility that a warrant will have been issued for your arrest for “failure to appear.” Outstanding warrants of this kind from other parts of the country may or may not show up during processing, depending on how thoroughly the jurisdiction where you were arrested has sought the assistance of other jurisdictions. It is best, and probably likeliest, to assume that the authorities here will know if you skipped a court date anywhere else in the country. Failure to appear for a DC court date is a separate offense, so beyond the penalties for whatever you were first arrested for, you can be fined up to the maximum for that offense, and/or an additional 180 days in jail. If you were originally booked on a felony charge, failure to appear is punishable by up to 5 years. DC Code § 22-1110(3)-(4).

False statement. This can come up with forms you are asked to complete before being released. If you put something untrue on a form that says making a false statement is punishable by criminal penalties, you can be fined $1,000 and/or be sentenced to 180 days in jail. DC Code § 22-2514.
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