Legal Information for Direct Action

Please note that these documents were prepared for direct action in the United State and the specifics of the law do not apply for FTAA actions in Canada.

For legal information specific to the action in Quebec, please see:

Jail Court Solidarity

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Jail/court solidarity is the name for a variety of tactics we use to take care of each other while we’re in the legal system. Jail/court solidarity involves a combination of non-cooperation techniques and collective bargaining. Although jails and courts are designed to make us feel powerless, through solidarity we can gain better control over what happens to us, by making decisions as a group; by acting in unity with each other; and by committing ourselves to safeguard each other’s well being. Jail/court solidarity has been used effectively in the civil rights, peace, environmental, and other movements to protect activists who were arrested. Every time there’s a choice in the legal process, activists can either cooperate or make things more difficult for the authorities. Solidarity tactics mean that people non-cooperate as a group, unless the authorities agree to their demands. People who’ve been arrested could demand that everyone receive the same charges and the same sentence, instead of some people (i.e., leaders, minorities, anarchists) being singled out for harsher treatment. People in custody could demand that a sick or hurt person be given immediate medical treatment. People in jail may want to demand that any person the authorities locked up separately be brought back and held with the rest of the group. Types of non-cooperation include:

Physical Non-Cooperation Techniques

• refusing to follow orders (they say stand, we sit; they say line up, we mill about)
• refusing to walk
• refusing to hold still
• refusing to stop singing or dancing
• refusing to eat
• refusing to wear clothes

Procedural Non-Cooperation Techniques

• not bringing ID and refusing to give name or answer other questions (which forces the authorities to keep us locked up, clogging the jail system)
• refusing to promise to appear in court (which also forces the authorities to keep people locked up, clogging the jail system)
• demanding to have the court appoint a free attorney to defend every low-income defendant (which creates a vast amount of paperwork for the court and prosecution, as well as a huge expense for the authorities)
• refusing to plead guilty (which forces the authorities to hold trials, clogging the court system)
• refusing to waive time for a speedy trial (which forces authorities to bring everyone to trial within a month or so of our first court appearance, as opposed to scheduling trials to start long after, at the authorities’ convenience)
• fighting the case vigorously before trial by submitting a lot of motions (written legal arguments, to which the prosecutor will need to respond) and requiring lots of hearings in court

Remember that physical non-cooperation-as opposed to procedural non-cooperation, could potentially result in charges of resisting an officer-but that’s often just threatened and not actually imposed. There are many creative ways to non-cooperate beyond this short list, and it’s good to mix-and-match. Groups should make sure to talk in advance about which solidarity demands and which types of non-cooperation they might want to use. It’s not necessary for everyone in the group to participate in a given non-cooperation tactic in order for it to work. And sometimes one or two people may choose to non-cooperate in a particular way by themselves, as their own political statement. (For example, perhaps just one or two people want to go limp when they’re arrested, or fast when they’re in jail.) However, to use noncooperation as a solidarity tactic effectively you need enough people participating to overwhelm the authorities, forcing them to agree to demands.

The use of jail/court solidarity should not deter anyone from participating in the action. Pressure for everyone to conform is counter to the spirit of solidarity. People who employ jail/court solidarity tactics need to leave plenty of room for those who do not wish to join them. Not everyone can stay in jail. Not everyone can go to court. But then, not everyone has to participate in order for solidarity tactics to work. The strength of solidarity comes from the voluntary agreement of everyone who takes part in it, and from the support from those who cannot.

Much of the time, we’re working in coalition with people who hold varying political beliefs. Often the larger group includes people of different races, classes, ages, sexual orientations, etc. It’s far easier to reach consensus on solidarity tactics if we listen closely to all points of view before launching proposals.

We must never let the police, the jail authorities or any lawyers push us into rushed decisions. If we’re being rushed, we just have to bargain for more time. After all, it’s simpler for the authorities to give us another fifteen minutes to come to consensus than for them to carry a bus-full or room-full of limp bodies to jail.

Crime and Punishment: Frequently Asked Questions

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What crimes could we be charged with?

Protesters are usually charged with infractions (a crime usually not punishable by jail time) or misdemeanors (a crime punishable by a year in jail or less). Typical infractions are jaywalking or driving beyond the speed limit. Typical misdemeanors are trespassing, blocking the road, causing minor property damage or resisting an officer. Sometimes activists are charged with felonies (a crime punishable by prison time), such as conspiracy or major property damage. However, in past mass civil resistance, these felony charges have typically been dropped. Prosecutors tend to use them as a scare tactic or bargaining tool and will often pile up multiple charges, in order to be able to say: “We’re charging the defendants with damaging property, resisting an officer, and trespass; but we’ll drop the first two charges, if they’ll plead guilty to the trespass charge.”

Can the charges against us be changed?

Charges which police write down when they arrest us are not necessarily the charges a prosecutor uses. The arresting officer’s charges are a suggestion. It’s the prosecutor who decides the real charges, and s/he can change them up until we actually start trial. Charges are a matter for negotiation using solidarity.

Is it really a crime merely to touch a police officer?

Yes. Simply touching an officer with our fingers is usually an “assault” or “battery.” Officers can lay hands on us, but we must not initiate contact with them with any part of our bodies or our belongings. Don’t touch police vehicles, dogs, horses or other equipment. They are considered extensions of the officer.

What exactly is resisting an officer?

Resisting an officer is physical, not verbal. Even passive physical resistance, such as going limp, is legally considered resisting an officer. However, refusing to answer questions is not resisting, because you always have the right to remain silent.

What if we give names other than our “legal name?”

It is a misdemeanor to give a false name-or other false information-to a police officer, under both state and federal law.

What happens if we damage property?

Property damage which has occurred in previous mass civil resistance actions has included things like: cutting fences, painting messages, dismantling train tracks, etc. The penalties for property damage almost always include fines and/or restitution, as well as incarceration. The laws vary from jurisdiction to jurisdiction. For example, in the federal system, property damage of over $100 is a felony. The bill for even a little graffiti cleanup is often well over the felony limit.

CAUTION!

If you bring weapons (including your trusty pocket knife or Leatherman tool) or illegal drugs to the action, you are likely to get additional charges-maybe very serious ones. Double-check your pockets and bags. It creates hassles for everyone and puts a major strain on solidarity if you get busted for drugs or weapons.

Lawyers...what’s the use?

In a mass direct action, our best protection is solidarity. However, lawyers are useful for passing messages between groups of protesters who are being held in different places (different institutions or different cells in the same jail), or for dealing with problems (like getting medication in jail). When a lawyer arrives, make sure to use good meeting techniques. Select a facilitator or two among the protesters to organize questions and proposals.

How do we use our legal team?

Call as soon as you can. Call when you’re about to be arrested; when you’re on the bus to jail; when you get to jail. When the legal team visits you in custody, they will be expecting the facilitator to take the group through the following legal visit agenda:

• Are there any emergencies which must be dealt with before we can proceed with other topics?
• Do you want a report on what other groups of arrested protesters are doing and on the state of negotiations with the authorities?
• Have you made decisions about solidarity tactics or demands which you want communicated to other groups of protesters or to the authorities?
• Is there any legal information you need which will help you make decisions? Organize your questions and directions in advance, to make the best use of the meeting time.

CAUTION!

The police or jail authorities frequently lie and say there isn’t a lawyer there for us or that we must name a specific lawyer. Very often there’s a lawyer from our legal team waiting anxiously to talk to us, who won’t be allowed in until we exert pressure through solidarity tactics. It helps if our lawyer knows our names or jail identification numbers, but we don’t have to know a specific lawyer’s name. We can just demand to see “someone from the legal team.”

Police

When dealing with the police, keep your hands in view and don’t make sudden movements. Also, avoid passing behind them. Never touch the police or their equipment (vehicles, flashlights, animals, etc.)

When we are involved in or observing an interaction with the police, we should always note what is said and by whom. Record the officers’ names and badge numbers. Immediately after the police interaction, make a copy of the Police Misconduct Report and fill it out. Do it promptly so you can remember important details clearly. Familiarize yourself with the Police Misconduct Report in advance so you’ll know what to look for.

Questioning

Whenever law enforcement officers ask us anything besides name and address, it’s legally safest to say these Magic Words: “I am going to remain silent. I want a lawyer.” Remember, anything we say to the authorities can and will be used against us and our friends in court. There’s no way to predict what the police might try to use or how they’d use it. Plus, the police might misquote us or lie altogether about what was said. So it’s good to make a habit of saying only the Magic Words and letting everyone know that this is our policy.

Be aware that the authorities are legally allowed to lie when they’re investigating, and they are trained to be manipulative. Insist upon speaking with friends and lawyers before you answer any questions or produce any documents.

If you don’t think you’ll remember the Magic Words when you need them, write them on your body, preferably with something that won’t wash off too easily (permanent markers work well.) Make sure that when you’re arrested with other people, the rest of the group knows the Magic Words and promises to use them.

There are a lot of ways the police will try to trick you into talking. It’s always safest just to say the Magic Words: “I am going to remain silent. I want a lawyer.” The following are common lines the police use when they’re trying to get you to talk:

• You’re not a suspect. We’re simply investigating here. Just help us understand what happened and then you can go.”
• “If you don’t answer my questions, I won’t have any choice but to take you to jail.”
• “Your friends have all cooperated and we let them go home. You’re the only one left. Do you want to go to jail?”
• “If you don’t answer these questions, you’ll be charged with resisting an officer.”

If you’re arrested with friends, make an agreement that no one will make statements to the police until everyone’s been able to talk to a lawyer and calmly decide what to do. Be aware of the paranoia which tends to set in after people have been separated.

Be particularly suspicious if you are in custody and an officer (or an unfamiliar person claiming to be a lawyer) comes and tells you that everyone else has agreed to a particular deal or to leave jail. Demand to see a trusted lawyer or another activist to verify this information.

When you’re in jail, remember to be careful of what you say. Use each others nicknames. Above all, do not ask for or accept legal advice from law enforcement officers. They are not there your advocates. Remember that they’ve been trained to put you at ease, to get you to trust them. Their job is to find, arrest and help convict the suspect. And that suspect is you.

Searches and Warrants

Do not consent when the police ask to enter and search your home without a search warrant. Don’t let them invite themselves in. Stand in the doorway and refuse to give them permission. The police are quite likely to tell you they don’t need a warrant. It’s always safest to reply: “I do not consent to this search.”

If police have a search warrant, ask to see it and check that it’s signed and has your correct address and a reasonably recent date (not more than a couple of weeks). If you point out a flaw in a warrant, the police may ask you to let them in anyway. Just say no. Even if the police have a warrant which looks perfectly okay to you, it still makes sense to say “I do not consent to this search,” because it’s possible that there’s a hidden flaw in the warrant which your lawyer may be able to find later on.

You should refuse consent to searches of your car, bags and any other possessions by saying “I do not consent” may seem a little formal, but it helps keep the police from claiming that they thought copy with affinity group supporters, and leave copies with your legal and medical teams. Obviously, these letters may disclose your identity, which interferes with the solidarity tactic of withholding information. One way to handle this is to give your doctor a photo of yourself to go with the letter, and have the doctor refer to you as “the patient in the attached photograph,” rather than by name.