Annual Training:Your Rights with the Police

LOGAN WYATT | CHAIR

LANDON BROWNFIELD | VICE CHAIR

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Why this training?In discussions, the Local Executive Committee of the Socialist Party of Saint Louis agreed to provide an annual “legal first aid” training for our members on their rights with the police.

This is more necessary than ever, as police brutality and the violation of citizens’ rights are only increasing. Protests with movements such as #BlackLivesMatter, #MillionStudentMarch, or #DumpTrump have been met with hostility from the police.

Each member of the Socialist Party should have a working understanding of what their rights are if they are confronted, detained, and/or arrested by the police.

Why this training?This legal training aims to do provide this working understanding.

It’s by no means an exhaustive list, nor is it the authoritative source on the subject. You should do the research yourself to become fully aware of your rights – this is just a starting point.

We’ll talk about several different points, such as your right to free speech and the freedom to assemble. And, though we don’t necessarily encourage lawbreaking, if it should happen, we hope that this will be a resource you’re able to use.

We’ll provide some additional resources for further study at the end of this training session.

Let’s begin.

The First Amendment:Freedom of SpeechAmong many other rights, the First Amendment to the Constitution of the United States protects Freedom of Speech. This includes both direct words and symbolic actions.

Freedom of Speech is an important right to understand, as is the Right to Assemble (Right to Protest), which we’ll discuss a bit later.

To the right, there’s a short list of some of the actions that are (or are not) covered under the First Amendment.

Freedom of speech includes the right:

• Not to speak (specifically, the right not tosalute the flag).West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).

• Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”).Tinker v. Des Moines, 393 U.S. 503 (1969).

• To use certain offensive words and phrases to convey political messages.Cohen v. California, 403 U.S. 15 (1971).

• To engage in symbolic speech, (e.g., burning the flag in protest).Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990)1.

The First Amendment:Freedom of SpeechAmong many other rights, the First Amendment to the Constitution of the United States protects Freedom of Speech. This includes both direct words and symbolic actions.

Freedom of Speech is an important right to understand, as is the Right to Assemble (Right to Protest), which we’ll discuss a bit later.

To the right, there’s a short list of some of the actions that are (or are not) covered under the First Amendment.

Freedom of speech does not include the right:

• To incite actions that would harm others (e.g., “[S]hout[ing] ‘fire’ in a crowded theater.”).Schenck v. United States, 249 U.S. 47 (1919).

• To make or distribute obscene materials.Roth v. United States, 354 U.S. 476 (1957).

• To burn draft cards as an anti-war protest.United States v. O’Brien, 391 U.S. 367 (1968).

• Of students to make an obscene speech at a school-sponsored event.Bethel School District #43 v. Fraser, 478 U.S. 675 (1986).

• Of students to advocate illegal drug use at a school-sponsored event.Morse v. Frederick, __ U.S. __ (2007)1.

The First Amendment:Freedom to Assemble/Protest“The right to join with fellow citizens in protest or peaceful assembly is critical to a functioning democracy and at the core of the First Amendment. Unfortunately, law enforcement officials sometimes violate this right through means intended to thwart free public expression.

In recent history, challenges to the right to protest have come in many forms. In some cases, police crack down on demonstrations through mass arrests, illegal use of force, or curfews. Elsewhere, law enforcement limits expression by corralling protesters into so-called “free-speech zones.” And increasingly, new surveillance technologies are turned on innocent people, collecting information on their activities by virtue of their association with or proximity to a given protest.

Even without active obstruction of the right to protest, limitations on that right or fear of police intimidation can chill expressive activity and result in self-censorship” (ACLU) 2.

The First Amendment:Freedom to Assemble/Protest• Even if it’s controversial, your free speech

can’t be restricted based on the content of the speech. This doesn’t mean that police can’t control the “time, place, and manner” of the speech, though – such as requiring large protest groups to have a permit.

• Any “public forums” (sidewalks, streets, parks) and some government building plazas are areas of constitutionally protected free speech. Private property requires the consent of the property owner for constitutional protection.

• Usually, permits aren’t required. There are certain events that require permits, though, such as certain traffic-blocking marches or large rallies. You may need to file the petition weeks in advance, but the First Amendment prohibits such an advance notice requirement from being used to prevent protests in response to recent news events.

• A permit can’t be denied because the event is controversial or will express unpopular views3.

The First Amendment:Freedom to Assemble/Protest• If you don’t have a permit, but you stay on

the sidewalks, your activity is constitutionally protected. You may be restricted from blocking, obstructing, or detaining people passing by, though.

• You can hand out leaflets, newspapers, petitions, and solicitations for donations without a permit, although a permit could be required to set up tents or tables. You can’t block entrances or physically detain people, though.

• You don’t need a permit to picket, as long as you’re not blocking buildings.

• If the police do stop you, you don’t have to provide an ID or other paperwork, but you may be required to give your name. Explain that the First Amendment protects your actions. Ask if you’re free to leave – if they say yes, walk away.

• You don’t ever have to consent to a search. Police can pat you down, but you can refuse consent for anything afterwards3.

• We’ll look at what happens if you get stopped and/or arrested next.

What do I do if I get stoppedby the police (outside)?Don’t resist, even if they’re violating your rights.

In some states, you may be required to give your name, but you don’t have to provide an ID or other paperwork.

Ask if you’re free to leave.◦ If the officer says yes, calmly and silently walk away.

◦ If the officer says no, ask if you’re being arrested, and if so, what for.

If they suspect you of carrying a weapon, police are allowed to pat you down6.

So when can an officer ask for my ID?Again, in some states, you may be required to give your name, but you don’t have to provide an ID or other paperwork. You should know that refusing to show ID can frequently lead to detention or arrest, despite the fact that you aren’t required to provide it6. See the video to the right.

Note that different rulesapply in vehicles! Click next when you’re done.If viewing in Flash, click here for the video.

What do I do if I get stoppedby the police (in my car)?If you’re in your car, you have to provide your driver’s license, registration, and proof of insurance if requested. You can refuse consent to a search of the car (unless the officer thinks it contains evidence of a crime).

Both the drivers and passengers have the right to remain silent5.

The video to the right shows a good example of how to exercise your legal rights at a traffic stop. If viewing in Flash, click here for the video.

What do I do if I get stoppedby the police (in my car)?

Let’s define “probable cause.” Itrequires facts or evidence that would lead a reasonable person to believe that a suspect has committed a crime. Any minor traffic violation (speeding, expired registration) are not considered probably cause.

Do not consent to a search! Most vehicle searches happen because people get tricked or intimidated into consenting, not because there’s probable cause5.

Check out the video to the left for some more information about searches and “probable cause.”

If viewing in Flash, click here for the video.

What about if I get arrested?The most important thing to remember is that you have the right to remain silent. If you wish to exercise this right, say so. The Fifth Amendment to the U.S. Constitution says that no one compelled in any criminal case to be a witness against himself…4” This is commonly referred to as “pleading the Fifth.”

Police can pat you down if they believe you have a weapon, but you have the right to refuse a search of yourself, your vehicle, or your home.

If you ask and they say you aren’t under arrest, you have the right to calmly leave.

If you are arrested, ask for a lawyer immediately. You have this right, even if you can’t pay for it. You don’t have to say anything or sign anything without consulting a lawyer.

Write down everything you’re able to remember, including the officers’ badge/car numbers, the agency, witnesses, etc. Take photos of any injuries.

File a written complaint or contact the ACLU if you feel that your rights have been violated5.

Don’t police have to read memy rights?Actually, there are only two conditions in which an officer has to read yourMiranda rights:

1. When you have been placed under arrest; AND,

2. When the officer is about to question you about a crime.

Don’t rely on the officers reading you your rights.

Remain silent, and request a lawyer7.

ANYTHING YOU SAY CAN AND WILL BE USED AGAINST YOU IN COURT.

Can I record the police?“The law in 38 states plainly allows citizens to record police, as long as you don’t physically interfere with their work8. Police might still unfairly harass you, detain you, or confiscate your camera. They might even arrest you for some catchall misdemeanor such as obstruction of justice or disorderly conduct. But you will not be charged for illegally recording police.

Twelve states—California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington—require the consent of all parties for you to record a conversation. But do not despair if you live in these states: All but 2 —Massachusetts and Illinois—have an “expectation of privacy provision” to their all-party laws that courts have ruled does not apply to on-duty police (or anyone in public). In other words, it’s technically legal in those 48 states to openly record on-duty police9.”

Can I record the police?Here are some general guidelines about recording the police:

1. Know your state’s law.

2. Record openly – don’t secretly record them; a case could depend on this.

3. If asked what you’re doing, calmly explain that you’re asserting your First Amendment rights by documenting and recording. Remember, they can’t ask for your ID if they don’t have reasonable suspicion to detain you. If they say you aren’t being detained, you may calmly leave.

4. If they say that recording them is against the law:

a) “Officer, with all due respect, state law only requires permission from one party in a conversation. I don’t need your permission to record so long as I’m not interfering with your work,” unless…

b) “If you live in one of the 12 ‘all party record’ states, you might say something like “Officer, I’m familiar with the law, but the courts have ruled that it doesn’t apply to recording on-duty police9.”

Can I record the police?Here are some general guidelines about recording the police (continued):

5. Don’t share your video with the cops. Contact a lawyer as soon as possible.

6. Prepare to be arrested.

7. Use of smartphones. Consider installing a streaming video app like Qik or Bambuser – they’re both free, and instantly store your video offsite. Always passcode-protect your smartphone, and don’t give them the code. This will make it difficult for them to simply delete the video. Set these apps to “private.” Bambuser will actually keep recording after locked.

8. Don’t point your camera like a gun. You don’t want to make them think you have a weapon, or you could easily be arrested, or much worse, shot9.

Reporting Police Misconduct1. Write everything down.

2. Consult with an attorney.

3. File a police misconduct report. “Googling ‘police complaint’ + ‘[name of your town or city]’ will usually direct you to the correct office. If your town has a civilian review board and an office within the police department that both accept complaints, send your report to both offices.10”

See the video to the right.If viewing in Flash, click here for the video.

Ready to test your knowledge?Click here to take an anonymous quiz. We don’t see any

results; it’s just for you to quiz yourself. At the end of the quiz, explanations of the correct answers will be provided.

Click here to begin:

https://www.onlineexambuilder.com/sp-stl-police-training-quiz/exam-67563

Additional ResourcesSelf-quiz on the First Amendment: http://www.uscourts.gov/about-federal-courts/educational-resources/educational-activities/first-amendment-activities

Additional resources on recording police (courtesy of the RidleyReport):https://www.youtube.com/watch?v=vLSptMe3yw0&feature=youtu.be

Qik: http://blogs.skype.com/2016/02/22/skype-qik-is-moving/

Bambuser:http://bambuser.com/

We highly recommend this resource!American Civil Liberties Union (ACLU):Know Your Rights When Encountering Law Enforcement:https://www.aclu.org/files/kyr/kyr_english.pdf

FlexYourRightshttp://www.flexyourrights.org

References1. http://www.uscourts.gov/about-federal-

courts/educational-resources/about-educational-outreach/activity-resources/what-does

2. https://www.aclu.org/issues/free-speech/rights-protesters.

3. https://www.aclu.org/know-your-rights/what-do-if-your-rights-are-violated-demonstration-or-protest?redirect=free-speech/know-your-rights-demonstrations-and-protests

4. http://criminal.findlaw.com/criminal-rights/fifth-amendment-right-against-self-incrimination.html

5. https://www.aclu.org/know-your-rights/what-do-if-youre-stopped-police-immigration-agents-or-fbi

6. https://www.flexyourrights.org

7. https://www.flexyourrights.org/faqs/police-didnt-read-me-my-rights/

8. http://www.rcfp.org/reporters-recording-guide/state-state-guide

9. https://www.flexyourrights.org/7-rules-for-recording-police/

10. https://www.flexyourrights.org/faqs/how-to-report-police-misconduct/

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LOGAN WYATT | CHAIR

LANDON BROWNFIELD | VICE CHAIR

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