Over the past couple weeks, protests over racism and police brutality have erupted in almost every major city throughout the United States. Police have conducted mass arrests for a variety of alleged offenses. Today I wanted to take a minute to provide a quick overview of some of the legal issues surrounding these protests (specifically in California), and the rights that protesters need to understand before they get involved.
The 1st Amendment
The 1st Amendment to the US Constitution enshrines Freedom of Conscience. This includes the right to express yourself, the right to peacefully assemble, and the right "to petition the government for redress of grievances" (the right to protest).
The right to express an opinion is sacrosanct, regardless of how popular or unpopular that opinion might be. Contrary to common belief, the law makes no distinction between "political speech" and "hate speech". All opinions are equally protected, even if you find some expression to be repugnant. The government may never punish or prosecute someone simply for expressing an offensive thought.
Courts draw a distinction, though, between regulating thoughts and regulating actions. Even though all opinions are equally protected under the law, police may enforce reasonable restrictions on the time, place and manner of speech. For example, they may require permits for large gatherings, as long as they do not discriminate in the issuance of permits. They may prevent protesters from blocking traffic and disrupting essential functions of the city, as long as they leave open some adequate alternative methods for protesters to express themselves.
This is going to be a big issue in the coming months, as advocates sue police departments over the heavy-handed tactics that were used to clear out some demonstrations. Courts will have to determine whether police used unnecessary force to stifle dissent, or if they simply enforced the law by regulating the "time, place and manner" of unlawful assemblies.
If you decide to participate in any protest rallies, remember that your words and opinions are 100% protected by law. Your actions, though, are not. You are free to yell "FTP!" in a cop's face, but you will be arrested if you spray paint it on a police car. That's the difference between free speech (protected) and vandalism (not protected, even if it is politically motivated).
Recording the Police
Courts have consistently ruled that filming the police while they perform their duties in public is protected by the 1st Amendment. If we've learned anything over the past couple weeks, it should be the value of cell phone cameras in exposing abusive tactics by law enforcement. The outcry over George Floyd's death was sparked by cell phone footage that showed police kneeling on his neck for over 8 minutes as he did not appear to resist. Without that footage, the officers involved would probably still be on the job.
Since then, cell phone videos have captured police pushing an elderly man to the ground, causing him to strike his head on the pavement. We've seen police push a woman and use profanity against her while she was kneeling. We've seen officers use batons to strike members of the media and peaceful protesters who appeared to be walking away. An officer in New York was recorded removing a man's mask and spraying him in the face with pepper spray. All of these incidents were brought to national attention thanks to the relatively new role of ubiquitous cell phone cameras. These images have helped spread the message that police brutality is a serious problem in the US and that it needs to be addressed by people of all races.
Hopefully, the fear of being filmed will deter bad conduct by police in the future. If you attend any protest rally, make sure that your camera is rolling. If you see police using questionable force, document it and share it. These videos provide a valuable first-hand account of what actually happened, rather than simply taking the officer's word.
Resisting Arrest
Recording the police in public is protected by the 1st Amendment, but interfering with their duties is not. If you choose to record the police, make sure that you do so from a safe distance. Do not put yourself into a position where you could be accused of "delaying" or "obstructing" them. Do not intervene or try to prevent them from performing their jobs. If you get in their way, even briefly, you can be arrested for violating section 148(a)(1) of the California Penal Code, commonly known as "resisting".
To be guilty of resisting, the DA only needs to prove that the police were attempting to perform their lawful duties and that you made their job more difficult or time-consuming than necessary. They do NOT need to prove that you were under arrest before you started resisting, or even that you did anything else illegal. This is a common issue that I hear all the time -- "How can I be charged for resisting arrest if I wasn't arrested until after I resisted?". If an officer was trying to do something else and you got in the way, you will be arrested for resisting.
A common defense to 148(a)(1) charges -- and one that I expect to see used A LOT in the near future -- is that the officers involved were not performing their lawful duties when the defendant resisted. If the police were doing something unlawful to begin with, then a defendant commits no crime when he resists or obstructs them. This argument is going to depend heavily on the individual facts and circumstances of each specific case. It is risky, because it essentially requires the defendant to admit that he committed the act and to argue that the act itself was not a crime.
I plan to continue updating this post as more issues arise. Check back often for the latest. Be safe out there. If you or a loved one has any questions about your right to peacefully protest, call our office for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
