Occupy Portland - Legal and Safety
In any demonstration of civil disobedience there is a chance you can be stopped, questioned, or detained by police. Should you find yourself in any of these situations, the best way to avoid legal trouble is to know your rights. Below is a video giving an overview of what to do when dealing with police and a detailed guide outlining your rights. If for any reason during the demonstration you are detained call the Portland Law Collective LLP: (503) 228-1889.
What rights do I have?
The Right to Advocate for Change. The First Amendment to the U.S. Constitution protects the rights of groups and individuals who advocate changes in laws, government practices, and even the form of government.
The Right to Remain Silent. The Fifth Amendment of the Constitution provides that every person has the right to remain silent in the face of questions posed by any police officer or government agent.
The Right to be Free from "Unreasonable Searches and Seizures." The Fourth Amendment is supposed to protect your privacy. Without a warrant, no government agent is allowed to search your home or office and you can refuse to let them in. Know, however, that it is easy for the government to monitor your telephone calls, conversations in your office, home, car, or meeting place, as well as mail. E-mail is particularly insecure. The government has already begun stepping up its monitoring of e-mails.
CONSTITUTIONAL RIGHTS CANNOT BE SUSPENDED -- EVEN DURING A STATE OF EMERGENCY OR WARTIME.
What should I do if agents come to question me?
- YOU DO NOT HAVE TO TALK TO THE POLICE, FBI, INS, OR ANY OTHER LAW ENFORCEMENT AGENT OR INVESTIGATOR. Other than providing your name and address to a police officer who is investigating a crime, you are not legally obligated to talk to anyone: on the street, at your home or office, if you've been arrested, or even if you're in jail. Only a judge has the legal authority to order you to answer questions.
- YOU DO NOT HAVE TO LET POLICE OR OTHER LAW ENFORCEMENT AGENTS INTO YOUR HOME OR OFFICE UNLESS THEY HAVE A SEARCH WARRANT OR ARREST WARRANT. Demand to see the warrant. The warrant must specifically describe the place to be searched and the things to be seized. If they have a warrant, you cannot stop them from entering and searching, but you should still tell them that you do not consent to a search. This will limit them to the scope of the search authorized by the warrant.
- IF THEY DO PRESENT A WARRANT, YOU HAVE THE RIGHT TO MONITOR THEIR SEARCH AND ACTIVITIES. You have the right to observe what they do. You have the right to ask them for their names and titles. Take written notes including their names, badge numbers, and what agency they are from. Have your friends who are present act as witnesses. Give this information to your lawyer. A warrant does not give the government the right to question, nor does it obligate you to answer questions.
- IF THE POLICE OR FBI OR INS OR ANYONE ELSE TRIES TO QUESTION YOU OR TRIES TO ENTER YOUR HOME WITHOUT A WARRANT, JUST SAY NO! Police and other law enforcement agents are very skilled at getting information from people. Many people are afraid that if they refuse to cooperate, it will appear as if they have something to hide. Don't be fooled. The police are allowed to (and do) lie to you. Although agents may seem nice and pretend to be on your side, they are likely to be intent on learning about the habits, opinions, and affiliations of people not suspected of wrongdoing, with the end goal of stopping political activity with which the government disagrees. Trying to answer agents' questions, or trying to "educate them" about your cause can be very dangerous. You can never tell how a seemingly harmless bit of information that you give them might be used and misconstrued to hurt you or someone else. And keep in mind that lying to a federal agent is a crime.
- IF YOU ARE STOPPED ON THE STREET, ASK IF YOU ARE FREE TO GO. If you are stopped by the police, ask them why. If they do not have a good reason for stopping you, or if you find yourself chatting for more than a minute, ask "Am I under arrest, or am I free to go?" If they do not state that you are under arrest, tell them that you do not wish to continue speaking with them and that you are going to go about your business. Then do so.
- ANYTHING YOU SAY TO THE POLICE, FBI, INS, ETC. WILL BE USED AGAINST YOU AND OTHERS. Once you've been arrested, you cannot talk your way out of it! Don't try to engage the cops in dialogue or respond to their accusations.
- IF YOU ARE NERVOUS ABOUT SIMPLY REFUSING TO TALK, TELL THEM TO CONTACT YOUR LAWYER. They should stop trying to question you once you announce your desire to consult a lawyer. You do not have to already have one. Remember to get the name, agency, and telephone number of any investigator who visits you, and contact the Portland Law Collective for help getting a lawyer.
How should I respond to threatening letters or calls?
If your home or office is broken into, or threats have been made against you, your organization, or someone you work with, share this information with everyone affected. Take immediate steps to increase personal and office security. You should discuss with your organization and with a lawyer whether and how to report such incidents to the police and the advisability of taking other legal action. If you decide to make a report, do not do so without a lawyer present.
What if I suspect surveillance?
Prudence is the best course, no matter who you suspect, or what the basis of your suspicion. Do not hesitate to confront suspected agents politely, in public, with at least one other person present, and inquire about their business. If the suspect declines to answer, he or she at least now knows that you are aware of the surveillance. If you suspect government agents are monitoring you, or are harassing you, report this to the National Lawyers Guild.
What if I am not a citizen?
- YOU DO NOT HAVE TO REVEAL YOUR IMMIGRATION STATUS. We cannot count on the police to honor local sanctuary ordinances, and the fact that the INS obtained your name in violation of a sanctuary ordinance will NOT prevent you from being deported.
- FOREIGN NATIONALS WHO ARE ARRESTED IN THE U.S. HAVE THE RIGHT TO CALL YOUR CONSULATE or to have the police inform your consulate of your arrest. The police must allow your consul to visit or speak with you. Your consul might assist you in finding a lawyer or offer other help, such as contacting your family. You also have the right to refuse help from your consulate.
- DO NOT TALK TO THE INS, EVEN ON THE PHONE, before talking to an immigration lawyer. Many INS officers view "enforcement," meaning deporting people, as their primary job. They do not believe that explaining immigration options is part of their job, and most will readily admit this. (Noncitizens who are victims of domestic abuse should speak with an expert in both immigration law and domestic violence.) A noncitizen should always speak with an immigration law expert before speaking to the INS either in person or by telephone.
- KNOW AND ASSERT YOUR RIGHTS! All noncitizens have the following rights, regardless of your immigration status:
- The right to speak to an attorney before answering any questions or signing any documents;
- The right to a hearing with an Immigration Judge;
- The right to have an attorney at that hearing and in any interview with INS (however you do not have the right to a free, government-paid lawyer); and
- The right to request release from detention, by paying a bond if necessary. Noncitizens must assert these rights. If you do not demand these rights, you can be deported without seeing either an attorney or a judge. Leaving the U.S. in this way may have serious consequences for your ability to later enter or to gain legal immigration status in the U.S.
- TALK TO AN IMMIGRATION LAWYER BEFORE LEAVING THE U.S. Anyone not a U.S. citizen may be barred from coming back to the U.S. if they fall into certain categories of people barred from entering. This includes some lawful permanent residents and applicants for green cards. Some noncitizens that have been in the U.S. without INS permission may be permanently barred from re-entering. In addition, some noncitizens that leave the US and return with INS permission may be swiftly removed from the U.S. if they end up in immigration proceedings.
What should I do if I get arrested?
During processing, you may be asked for identification. If you provide it, police will check for any outstanding warrents for your arrest. At some point, the police and protestors will decide which of the following options to exercise.
Release without charge
In some cases, the police will arrest demonstrators, transport them away from the scene of the protest (sometimes many miles away), get personal information, and then release them onto the street without charge. This might occur if the police are unsure if any crime was really committed and just wanted to clear the area. Prosecutors may then be consulted to see what, if any, charges will be filed. The prosecutors can then take anywhere from a few days to a few months to decide to file charges against you.
If this happens to you, you will be asked to give an address -- giving a false address is a separate crime. If the prosecutors decide to charge you later, they will likely mail notice of your court date to the address you give the police. If notice is mailed to a bad address, it will be returned and you won't get notice of the court date. A warrant for your arrest will then issue.
Sometimes, the police will write you a citation to return to court and release you from custody. This option will not be used if you do not give the police your name and address. Also, you are obliged by law to sign the citation, acknowledging only that you received it and promise to appear in court in the future. You are not waiving any rights or admitting guilt by signing the ticket. If you do not sign the citation, you will be booked into jail.
Again, giving a false address can lead to further charges. The ticket should have information on the back about how to find out when the court date is. While officers are required to file citations within 48 hours, they don't always do so and it may require several phone calls to find out when court will be.
Booked into jail
The police can decide to hold you. If held in jail, you must be brought before a judge within 48 hours, at which time the prosecutor must state why you are being held and provide a very small amount of evidence to show that there is a sound basis for thinking you may have violated the law. It is a very low standard and can usually be satisfied with a police report, but is required by the Constitution.
If they follow normal procedures, sometime before then you will be interviewed to determine whether you can be released on your "Personal Recognizance," which means without bail. Be sure to have the telephone number of your support person or someone else who will verify the information you are giving to the screener. There is no way to be sure who will be denied release PR, which is based on the seriousness of the charge and the perceived risk that you will flee or harm someone. Being released on your own recognizance means that you don't have to pay anything to get out of jail. You will, however, have to return for your arraignment, or you will have committed the crime of Failure to Appear.
A security release (often called “bail”) is secured by a deposit of money or other property. Be sure to obtain a receipt for any money or property deposited. The dollar amount of the security release is set by the court. If the defendant fails to appear for any court date, the money is lost through a procedure called bail forfeiture. When the case is resolved, the money or property deposited can be returned. Some courts will use some or all of the money to pay financial obligations on other cases involving the same defendant, such as unpaid traffic tickets or court costs.
What if I go to jail?
Things you should have:
A support person
If you know you will likely be arrested, be sure someone who isn't going to risk arrest knows what you are doing. You don't want to get swallowed up by the system without someone on the outside looking out for you.
A local address
Be able to supply a permanent local address, the name of your employer, if any, other contacts in the DC area, and the phone number of someone on the outside (usually your support person) who can verify all this information. This information may allow you to be released from police custody earlier than otherwise would be the case.
A picture ID
If you are planning to cooperate with the police, bring convincing picture identification. If you may not want to cooperate, don't carry I.D., but make sure your support person has your I.D.
No illegal drugs or weapons
DO NOT have any illegal drugs in your pockets, in your backpack, or anywhere else. (People have been charged for possessing Tylenol 3 without a prescription.) Also, do not have any weapons, which includes folding knives with blades over 3 1/2 inches, any fixed-blade knife -- and even such things as nail files. Do not carry any valuables with you, as these will likely disappear in the jail.
Prescription medications and medical needs in jail
When someone is booked into jail, most prescription medications are confiscated and placed into your "property" which is inaccessible to you while in jail, and (possibly) returned to you upon release. For a variety of reasons (security, lawsuits), jails have a policy of using their own medications for prisoners. The exception to this policy is if the medications are rare and expensive, in which case they will use your prescription.
In the event you are taking medications that are vitally necessary (i.e. for HIV, high blood pressure, etc.), it is very important that:
- You tell the booking officers that you need these medications to live;
- You have the medications in their original containers (actually, it is a crime to carry prescription medications outside of their original containers); and (3) you have a copy of the prescription from your doctor. The booking officer will then contact a nurse in the jail who will examine your medications and ask you questions, and make the decision (after contacting an on-call doctor if required) as to what happens with your medications.
If you have specific medical needs, be prepared to not have them met. The quality of medical care at the jail has been the subject of lawsuits. Although the authorities must provide "adequate" medical care, their idea of adequate may not be satisfactory.
Phone calls from your support people to the jail can also be effective in improving your access to medical care. It is also wise to leave a bottle of your medicine with your support people in case your bottle is confiscated, which is likely. Having your doctor call the jail infirmary may lead to some medical attention, but it may not. For A16, the legal and medical teams will be working together to pressure the jail into meeting people’s medical needs, although we of course can offer no guarantees.
Your rights in jail
An inventory of your personal belongings will be taken during your booking. You should be given an itemized receipt for the personal items that will be held for you. These items, often called prisoners’ property, are usually returned to you whenever you are released from custody. However, some items may be kept by the police for evidence purposes while a case is pending.
You cannot be forced to take a lie detector test. You should talk to your lawyer before asking or agreeing to take such a test. Lie detectors are not always accurate. Also, lie detector test results are not allowed in Oregon courts, except in rare situations.
You may be required to stand in a line-up, but you have the right to have your lawyer there. If you are asked to perform other tests, consult with your lawyer first. You have the right to get out of jail on bail or a conditional release agreement unless you are charged with murder. There are three kinds of release agreements: security release, personal recognizance, and conditional release.