lawyer bear by claire dancer

Our friend the anonymous criminal defense attorney has come back to answer some questions people had about certain things the police and private security personnel have been documented doing at Occupys around the country.

Also, a second caveat: this information is not intended to constitute specific legal advice nor to create or imply any attorney-client relationship. It is is provided solely for informational purposes and we do not warrant its accuracy or completeness in any way. In short, don’t go out and act a fool and then say to the cops “Well, that anonymous criminal defense attorney on L.A. RECORD told me so and so…” That ain’t gonna help you.

That said—if you have any questions about the legal aspects of occupying and protesting, please email us at fortherecord@larecord.com with subject DEFENSE and we will forward them to the ol’ LARACDAF for you and publish the answers here. Stay safe!

I have read about protesters making shields, or carrying gas masks to protect themselves against police action in protests. Any idea if this is lawful? What can protesters do to protect themselves if they fear that the police will use non-lethal weapons or pepper spray?
I read somewhere about some ancient law on the books in New York making it illegal to wear a mask while engaged in a protest, or something to that effect, so I assume that some others have read that and become concerned. Rightfully so! As I previously noted, there are an awful lot of criminal violations on the books in California and even us lawyers have a hard time memorizing all of them. Especially us lawyers whose misspent youths contributed to the later degradation of our memories … That is stated by way of a caveat: I don’t know off the top of my head. In the interest of answering the question, though, I spent way more time than my boss would be happy about looking through the California Penal Code. I didn’t find such an offense, after searching the following sections of the California Penal Code: Part I, Titles 3, 4, 7, 11 and 14; and Part IV, Title 2, covering more than 100 offenses. So I don’t think having a mask or a shield while protesting are themselves criminal in California. However, that being said, if you are arrested with those things during a ‘riot’ or a ‘rout,’ that stuff—along with your black hoodie and black utility pants and other black bloc gear—will certainly be used against you as evidence in a prosecution for riot, incitement to riot, or rout, in violation of penal code sections 404.6, 405, 406—all misdemeanors.

Are there any commonplace items that you can’t lawfully carry during a protest? Like pepper spray or a Swiss army knife?
Anything that you can’t carry in general, you can’t carry during a protest. There is a long list of these things, including, but not limited to, firearms (duh), laser scopes (if you point them at somebody or, say, a helicopter … 417.25) concealed dirks or daggers, leaded canes, writing pen knives, metal knuckles, shobi-zues—I know, I used to carry mine all the time, too!—zip guns, flechette darts, shurikens, etc. (12020 and 12029). To figure out whether it’s illegal to carry any specific things while engaged in a protest, I again flipped through the Code. The provisions related to the public peace are found in Part I, Title 11, ‘Of Crimes Against the Public Peace.’ None of those makes unlawful the carrying of any specific thing while engaged in a protest, and I haven’t found any such provision elsewhere in the Code. But my twin caveats remain in place: a. My inability to find that provision in the code shouldn’t be taken by you as a carte blanche to not face any culpability if you do something and are arrested and charged with a crime for doing so; b. Be sensible—if you look like a black bloc person, and carry a shield and wear a gasmask; you are basically representing to the cops that you are ready and willing to fuck with them. And they are just as willing and, in most cases, much more ready to fuck with you right back. You will likely be arrested and you will most certainly end up charged with something, and the cop will definitely say whatever he thinks he needs to for the charge to stick. In this system, squeaky wheels get greased …

Are the police required to identify themselves to the public at all times when on duty, with a nametag or a badge number or something similar?
If police officers were required to wear something identifying themselves as such while on duty, then my various ‘John’ clients, who solicited women they thought to be prostitutes, but who turned out just to be sexy sexy policewomen, would have a whole new line of defense. The short answer is, ‘No. Police officers don’t have to wear identifying markings. They can work undercover.’ And, contrary to popular belief, they don’t have to identify themselves as police if you ask them, ‘Are you a cop?’

What about private security guards?
Neither do private security guards. Their responsibility to identify themselves to you is exactly the same as that of any other Joe on the street. And their authority to ‘arrest’ you is the same as that of any other Joe: Penal Code section 837 states that a private person may arrest another 1. For a public offense committed or attempted in his presence; 2. When the person arrested has committed a felony, although not in his presence; 3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it. That’s why it was OK for those dudes in poorly-tailored suits to detain my friends in junior high school after the suits saw them spitting loogies on the piano player at the mall…

Can the police compel you to turn over a camera or other such recording device?
If the police have probable cause to believe you’ve committed an offense, and that the audio/video will provide evidence to that effect, they likely are within their authority in seizing it, and if you don’t surrender the audio/video, well you’re just adding a charge of obstructing. (See my previous posts). Now, if it turns out that the police didn’t have probable cause, then your lawyer can file a motion pursuant to Penal Code 1538.5 and the Fourth Amendment to the United States Constitution to prevent any evidence contained therein (thereon?) from being used against you and to get the tape—uh, I’m old—back. The cops may have already deleted the contents; if they have, your lawyer might consider moving for sanctions based on their destruction of evidence, including the ‘ultimate’ sanction of dismissal of any criminal action. Regardless, if the cop says, ‘I want your tape,’ you aren’t likely to get any benefit from saying, ‘Fuck you, cop! You can’t have it.’ You will likely get arrested.

In many of these protests, the demonstration will be declared an unlawful assembly at some point in the day and then the people are ordered to disperse. In L.A. during the Day of Action, for example, this happened at 3:55 p.m. However, nothing seemed to change between 3:54 and 3:55 pm. So why was it declared ‘unlawful?’ In other words, what conditions have to be in place for an assembly to be ‘unlawful’?
Unfortunately, for practical purposes, an ‘unlawful assembly’ is a thing that exists in the eye of whichever cop decides it is unlawful, at least insofar as you, the assembler, want to stay put. Penal Code sections 726 and 727 stand for the proposition that, when persons who are assembled are commanded to disperse, the police must arrest those who do not immediately disperse for disturbing the peace. In People v. Yuen, a 1939 case involving a miners’ picket that got a little rowdy, the Court of Appeal stated the rule like this: ‘It is the duty of a citizen to obey the commands of a peace officer given in his line of duty. If the officer is exceeding his authority, the recourse of the citizen is to the courts and not to open resistance.’ (People v. Yuen (1939) 32 Cla.App.2d 151, 161.) (Pardon the case citation, by the way. It’s a habit…) So here’s the deal: if you hear an order to disperse, and you think it’s bullshit, your proper recourse is to file a civil lawsuit for an order restraining the cops from making you disperse. Yeah, I know—not bloody likely. So you take your lumps, in that case. You’ll be happy to know that lawyers at public defender’s offices across the state are generally well-educated, devoted practitioners of the trade. So are us private attorneys, if you’ve got a little scrilla…

What if you are given conflicting directions by the police? For example, some people at the Day of Action were told that they were permitted to stay on the plaza so long as they were not on the grass; many of them were later arrested. What recourse do they have?
If one cop tells you you’ll be alright if you do one thing and you do that, and then find yourself arrested, you technically have several grounds of legal recourse: foremost, if you can recall the first cop’s name and (hopefully) badge number, and get a statement out of her affirming that she told you what you claim she told you, and you can show that you acted according to her advice and were arrested because you so acted, you can present that as a defense to the criminal charges, whether the defense is styled either of the affirmative defenses of mistake or entrapment, or just as evidence of a lack of criminal intent. Also, if it turns out that the first cop was verifiably correct about her legal advice, and the second cop’s act of arresting you was obviously unlawful, you can potentially sue the second cop under California’s Unruh Civil Rights Act and the Federal civil rights act, 42 U.S.C. section 1983, for violation of your civil rights. It’s an awful lot of trouble to go through, but if your arrest included a sufficient amount of skull-bashing to leave you disabled, it might be worth the trouble. If this happens to you, you’ll want to consult a police misconduct lawyer. Yes, there are lawyers who specialize in suing the police for violating peoples’ civil rights. And isn’t that just sad. Also, and finally, if some identified cop does something to you that you think is messed up, please consider complaining to that cop’s employer—most likely the LAPD here in Downtown Los Angeles. Every time a complaint about a cop’s conduct is made, that complaint gets put in the officer’s ‘jacket’, or official file and, in some cases, we defense attorneys can use a special procedure known as a ‘Pitchess Motion’ to get access to those records and hopefully use them to call into question that officer’s testimony. So your complaint now can potentially help somebody that the officer messes with in the future. As always, keep fighting the good fight, and do what you feel is right, but remember that sometimes doing that might end you up in jail. Good Luck!