Dissent and Arrest

I originally wrote this Mar 22, 2007, as a DailyKos diary, but, thought given how out-of-control law enforcement has become, it deserved a reprint and update here as well.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. - First Amendment of the Constitution.

So, if the First Amendment gives all American citizen's the right to assemble peaceably, how are anti-war protester's being arrested?

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. - Article VI, the United States Constitution.

There are many instances where protester's have been arrested by law enforcement official's.  If the Constitution is the "highest law in the land" and the people have the right to peaceably assemble, can arresting peaceable protester's then be legal?  And, what laws are being used to stifle dissent?  

Many times, the laws used to arrest dissenter's are; disorderly conduct, trespassing after notice, or Title 18, Part I, Ch 84, § 1752.  As each state, county, and municipalities laws read differently, I can only compare these arrests with the laws of South Carolina.

Disorderly Conduct.  Section 16-17-530 provides:  Any person who shall (a) be found on any highway or at any public place or public gathering in a grossly intoxicated condition or otherwise conducting himself in a disorderly or boisterous manner, (b) use obscene or profane language on any highway or at any public place or gathering or in hearing distance of any schoolhouse or church . . . shall be deemed guilty of a misdemeanor.

Does standing, silent and sober, on a sidewalk holding a sign that says "No War, Impeach Bush" meet the elements of the statute?  Hardly.

Trespass after notice.  Section 16-11-620 provides:  Any person who, without legal cause or good excuse, enters into the dwelling house, place of business, or on the premises of another person after having been warned not to do so or any person who, having entered into the dwelling house, place of business, or on the premises of another person without having been warned fails and refuses, without good cause or good excuse, to leave immediately upon being ordered or requested to do so by the person in possession or his agent or representative shall, on conviction, be fined not more than two hundred dollars or be imprisoned for not more than thirty days.

Does standing on a public sidewalk meet the elements of this statute?  Hardly.  How about this statute?

SECTION 16-11-630. Refusing to leave certain public premises during hours when they are regularly closed:  Any person who, during those hours of the day or night when the premises owned or occupied by a state, county or municipal agency are regularly closed to the public, shall refuse or fail, without justifiable cause, to leave those premises upon being requested to do so by a law-enforcement officer or guard, watchman or custodian responsible for the security or care of the premises, shall be deemed guilty of a misdemeanor and upon conviction, be fined not more than one hundred dollars or be imprisoned for not more than thirty days.

The key words are owned or occupied by a state, county, or municipal agency.  The sidewalk is public property.  

Yet, in South Carolina, Mr. Brett Bursey was arrested for protesting at Columbia Airport in 2003 for?  Trespassing.  The charge was dropped after he was removed from the area which is called nolle prosse, ie, the arresting officer does not intend to prosecute the charge once it comes before a judge.  The officer can nolle prosse a charge at any time before the charge is adjudicated in a court of law, ie, before a judge or jury starts proceedings on the charge.  Mr. Bursey was then charged under the Title 18 federal statute by the United States Attorney.  The NYT article is no longer available online, but, it read:

Since 1992, only a dozen cases involving this part of the United States Code, Section 1752 of Title 18, have been referred to federal prosecutors by the Secret Service and other government agencies, according to TRACfed, a database of federal enforcement information at Syracuse University. - NYT

Mr. Bursey was convicted under the federal statute and the case was appealed, found here.  The U.S. Attorney drug the case out in court until the appeal was dropped.  Basically, Mr. Bursey was going bankrupt on attorney's fees due to the U.S. Attorney's actions.

But, what must be noted, is that most times the local or state law enforcement aren't acting of their accord - it is at the direction of the United States Secret Service.

"Pitts said a SLED agent gave a signed statement saying agents discussed that Bursey was planning to protest the president's visit and asked one agent to make sure he was sent to an area a half-mile away from Bush. To bolster his argument, Pitts included parts of a transcript from a Michigan state trial where a college student was arrested for trespassing after he refused to put down a sign critical of Bush. In the transcript, a police captain said the Secret Service told him to move anyone protesting the president away from areas near where Bush would speak."

So, the Secret Service has sent down guidelines to local and state law enforcement officers that protester's are to be kept away from President Bush, and if they won't go away, they are to be arrested.  The Secret Service has done this enough times that law enforcement agencies, if not directly advised, are at least aware of the guidelines and follow them.  As more cases emerged where protesters were arrested for disorderly conduct, the arrest was caught on video, and the video provided proof that the arresting officers perjured themselves in court, many places instituted another law/ordinance; blocking sidewalk:

ASHEVILLE -- Police said Thursday that it would change charges against a man who held an "impeach Bush, Cheney" sign from a bridge over Interstate 240.

Jonas Phillips, a 35-year-old West Asheville resident, said he had recently taken up "highway blogging," a protest practice of displaying signs of political discontent from highway overpasses.

Police cited him Wednesday for obstructing the sidewalk but said Thursday a N.C. Department of Transportation violation would be more fitting.

So, why the new sidewalk ordinances?  LectLaw has this article on protesting and the Constitution:

However, the court suggested the first amendment would permit the city to use narrowly tailored regulations to minimize interference with
pedestrian movement on crowded sidewalks, such as established times for such activity and limitations on the size and precise positioning of the tables.8

We come back to the question then, if the constitution is the law of the land and no other law can supersede the rights enumerated, is arresting peaceable protester's constitutional?  More then likely not, but, judges at many levels, are ruling in favor of the government over the Constitution.  Worse, law enforcement officers follow the wishes of the "feds" unquestioningly.

I worked in law enforcement for 6 years and pulled Secret Service details on four Presidential VIP protection details.  I can tell you that when a Secret Service agent tells a local cop to "go remove him", that person is removed.  If a charge of arrest has to be levied, even knowing that the charge will be dropped later, that is what happens.  In many cases, the officers know exactly what they are doing; removing a protester simply because a Secret Service agent requests it under color of law that they have no intention of enforcing.  Proof of this is abundant (here, here, and here, just for a few).  But, what do they all have in common?

Last March, I wrote about Wes Brain's situation where he was arrested two days after the March 5, 2003 student protests for disorderly conduct that allegedly took place during the event.

Just heard that the charges were dropped!

BENNINGTON, Vt. -- A grandmother whose disorderly conduct conviction for standing in the road during a 2003 war protest was overturned by the Vermont Supreme court won't be tried again.

The Jefferson County district's attorney's office has dropped a charge of disorderly conduct against a Latino community group for protesting on the doorstep of state Sen. Cathy Stepp (R-Yorkville).

Imagine that... three arrests, all for disorderly conduct, and all dropped later or overturned.  As lawyers say, I rest my case.

Is there a way around these acts of false arrest?  Probably not, but, it never hurts for the person to be aware of the actual wording of their state, county and local laws, so that when a law enforcement officer states "you're under arrest for ....", you can calmly say, "Ummm... that's very interesting officer, because, that law states...(recite the elements of the law verbatim back to the officer calmly)...and there is absolutely zero way without perjury you could ever make that charge stick in a court of law".

Does it work?  Not all the time.  But I guarantee you one thing, the officer will stop and think before they act, no matter the outcome.  But you had best make sure that you have satisfied every element of the statute yourself, and, make sure to have numerous witnesses around you (preferably on video).  So, if you are going to be attending a peace-rally, or anti-war protest, remember; to be forewarned is to be forearmed.

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    thanks for the good info (none / 0) (#1)
    by Satya1 on Fri Oct 19, 2007 at 11:22:36 AM EST
    This kind of thing can't get enough scrutiny.  I've been watching for these events much more ever since the Rank arrest in W. Virginia.