via occupy la media team / mikeywally

By now, all of you have surely heard of the #occupy protests, and many of you have probably gotten involved in them. Tactics used by the non-violent movement have included marches, chants, demonstrations, and volunteering for arrest; sometimes, however, people have been arrested en masse without volunteering. In light of the events in Oakland last night and recent developments indicating Occupy L.A. may be told to leave their encampment at City Hall, a criminal defense lawyer in the L.A. area (who is a friend of L.A. RECORD but wishes to remain anonymous) has been kind enough to write out a DO’s and DON’Ts list for protesters facing the possibility arrest. (Or, come to think of it, anyone who is arrested for any reason). Hopefully you will find it helpful! Stay safe, and #occupy!

Do: Know your rights, specifically, those from the Fifth Amendment that apply to you by way of the Fourteenth Amendment, and about which we were reminded in the seminal Supreme Court Case of Miranda v. Arizona. You’ve probably heard them, but they bear repeating:

• You have the right to remain silent. (You REALLY SHOULD remain silent when you are detained or arrested!)
• Anything you say can and will be used against you in criminal proceedings against you. (That is why you should remain silent: regardless of what they say, the police ARE NOT trying to help you out or to get “your side of the story.” The only reason they want to talk to you is to get evidence they can use against you. So, when you say something like, “Yeah I stepped off the sidewalk while we were marching, but I got back on just as soon as I saw the police…” you have just given them a CONFESSION.)
• You have the right to consult with an attorney, and to have that attorney present during any questioning. (When you tell the police who are questioning you that you want an attorney, they will tell you, “Ok, we can get you an attorney, but once you tell us you won’t talk to us without one, we have to stop talking to you, so we won’t be able to help you out any more,” or some nonsense like that. Have no doubt that the police are lying to you about trying to help you. And guess what, they are allowed to, just as long as their lying doesn’t include unequivocal promises of leniency or other things that constitute coercion.)
• If you cannot afford an attorney, one will be appointed to represent you. (Everybody who is arrested or suspected of a crime should exercise his or her right to an attorney, regardless of whether he or she has any money. Just like in so many facets of life, an ounce of prevention—getting an attorney to help you understand what to do and what not to do—is worth a pound of cure.)

You should memorize these. The police are required to inform you of them when you are arrested, but there is a good chance that they won’t and then they’ll lie and say they did.

Don’t: Refuse to give the police your name or show them your ID if they request it. The Supreme Court has held that this information falls outside the protection against self-incrimination, so that, when asked, you have to provide it. If you refuse, you’ve just given police probable cause to arrest you for a violation of Penal Code section 148 by delaying an officer.

Don’t: Tell your buddy everything that happened when you call him from jail. Those calls are recorded and the prosecutor will get the recordings and WILL use what you said against you. In fact, once you’ve been arrested, don’t talk about the facts of the case with ANYBODY except for your attorney and whomever your attorney says you can talk to.

Don’t: Carry a lot of money in your pocket. Your belongings will be inventoried during your arrest and booking and, guess what? The money is going to not show up in the inventory. It will show up in the officer’s fantasy football pool.

Do: Think about practical concerns that will arise if you spend a couple days in jail. If you have pets, make sure somebody has a key and knows how to feed them. If you take meds, make sure you have your prescription and pills with you when you’re being brought to jail. Wear warm clothes. Jails are freaking coooooolllllld and the jailers are unlikely to give you a blanket or, really, anything other than a kick in the head.

If you want to go to jail, go ahead and call the cops names, or get in their faces, or sit down when they tell you to move. Hey, it’s your prerogative and more power to you. Remember all the stuff above if you are that guy or girl. And right on!

If you don’t want to be arrested, do what the cops tell you to do. You might still get arrested because cops have a lotttttttttttt of plastic zip-tie handcuffs that they’re just itching to use.

And they will have a really thick book of codes to which they can refer to figure out what to arrest you for. Here are a few that may well apply to you:

• Penal Code section 148—Resisting, delaying or obstructing an officer. See above;
• Penal Code section 409—Remaining present at a place of riot, etc., after warnings to disperse;
• Penal Code section 647c—Obstruction of street, sidewalk or other public place
• Penal Code section 415—Disturbing the peace by loud, unreasonable noise or offensive words.

And a special personal note to the protester girl who flipped me the bird the other day while I was on my way to meet with a client in jail—don’t make rash assumptions about people based solely on how they are dressed. Some of those people are totally on your side.

Regards,
A criminal defense lawyer