Below are two legal briefings developed by the National Campaign for Nonviolent Resistance for people who engaged in nonviolent civil resistance (risking arrest) at the White House (March 15, 2004) and at the US Capitol (September 26-27, 2006).

Legal Briefing for Nonviolent Civil Resistance (Risking Arrest) At the US Capitol (September 26-27, 2006)

Those engaging in nonviolent resistance on September 26 or 27 should be prepared for possible arrest, temporary incarceration, and court proceedings. Sentences for convictions can involve community service, or jail for periods of up to 6 months, and/or fines up to 00. Based on NCNR’s experience, however, it is unlikely the government will seek imprisonment for those convicted. A fine and court costs is a much more likely outcome.

Prior to participation in any risk arrest action, you should hand over to your supporters almost all of your belongings except for a picture ID, a few dollars and a prescription for any medication. Arrested people will be handcuffed and searched on the spot. Then the police will transport the prisoners to a nearby area for processing, where they may be fingerprinted, photographed, and issued individual citations which will require the arrestee to appear in court at a later date. During processing, you will be asked for identification. Sometimes, the police will write you a citation to return to court and release you from custody. 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 refuse to sign the citation or provide the police with your personal identification you could be booked into jail. (Please be aware that we are not prepared to support jail solidarity actions as part of this resistance action.)

If you are taking medications that are vitally necessary (i.e. for HIV, high blood pressure medicine, etc.), it is very important that (1) you tell the processing officers that you need these medications to live; (2) you have the medications in their original containers (as 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. In the unlikely scenario that you are 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), the jail has 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.

Based on proposed scenarios for the Sept. 26-27 actions, you will, if engaged in a resistance action, likely to be arrested by the Capitol Police, probably given a citation [pay a fine or appear for trial] and released after several hours on personal recognizance. This also presumes, of course, that you maintain nonviolent discipline during the action, and do not destroy property, harm or attack the police or bystanders, etc. It would be most unlikely that any bail is required.

In the unlikely situation that you are arrested by the Metropolitan Police—there are several different police jurisdictions on and around federal property—you could still be released with a citation at a local substation. However, you could be incarcerated overnight and brought before a magistrate in Superior Court. You would then probably be released on personal recognizance and scheduled for a hearing. At that court hearing you will be asked if you want to plead guilty or not guilty. If you want to plead not guilty, you will be given a date to return for trial. If you plead guilty to a minor charge, you may be sentenced right then. It is very unlikely that a nonviolent action will result in jail time. More likely scenarios would be community service, a fine and/or probation.

Washington, D.C. has the option of “post and forfeit,” where you pay (“post”) a set amount of money (a small amount, SUCH AS ) and forfeit the right to ever get the money back. It is not the same as a guilty plea, and does not become part of your record as it is not a criminal conviction. It is considered an administrative adjudication of your arrest, and is akin to receiving and paying a traffic ticket. The post and forfeit option officially ends the legal process after arrest, and those who choose it do not have to return for trial. You may consider this option up to and including on your trial date. Charges are possible under the DC Code or under federal laws. But again, based on experience, the most likely outcome is that you will be charged under D.C. Code and ordered to appear in Superior Court and not U.S. District Court.

DC Charges

Incommoding. This is blocking vehicle or pedestrian traffic on the streets, sidewalks, and other walkways. Maximum penalty is a 0 fine and/or 90 days in jail—DC Code § 22-1107.

The charge of disorderly conduct is essentially the same—DC Code § 22-1121.

Failure to obey a Police Officer. Often called “failure to disperse,” this charge is possible when the police order you to depart and you refuse. The order must be “lawful,” which means that if the police issue an unconstitutional order, there is no offense in ignoring it. But police authority is very broad. At trial, if the order is ruled lawful, you can be fined 0-,000. DC Muni. Reg. §§ 18-2000.2 & 2000.10.

Unlawful entry on property (trespassing). Remaining on government property after being told to leave is punishable by a fine up to 0 and/or up to 6 months in jail. For government buildings and the surrounding land, there must be some reason that you have been asked to leave, such as to prevent disruption or to maintain security. DC Code § 22-3102.

The National Campaign for Nonviolent Resistance wants to emphasize that these are guidelines. In risk arrest situations, there are many contingencies and too many variables to ascertain today what the police may do on September 26 or 27. It is possible, for example, the police may decline to arrest. Nevertheless, lawyers familiar with criminal law will be available to provide advice during the entire process.

Again based on much experience, NCNR feels that by maintaining nonviolent discipline (please refer to the nonviolent guidelines on our website, www.iraqpledge.org), the arrest will be comparatively “easy.” In other words, the worst-case scenario would be a night in jail, but more likely incarceration will amount to several hours, with release later that day. The punishment after conviction is likely to be a small fine.

We also want to emphasize that all risking arrest in nonviolent action must have a support person who has your personal information and will track you through the process following arrest until you are released, as well as help you to your destination post-release ˆ even if that release happens at 5 o’clock in the morning (which is when the last folks were released after our very large action on September 26, 2005).

While NCNR will provide overall coordination of the post-arrest process, and work with all support persons as needed, we cannot be responsible for tracking every individual who risks arrest. That is the purpose of having support persons. Preferably you should be part of an affinity group that has support persons. Affinity groups can be formed the night before for those who do not have one already. Finally, it must be realized that whatever risk or suffering we endure in the course of this action, it is nothing compared to what the people of Iraq have faced since March 20, 2003. As nonviolent activists, we should recognize that citizens and soldiers on all sides are risking their lives on a daily basis, and enduring great suffering on a daily basis, and it is these people that we should keep in our minds and hearts during the action. By taking nonviolent action, we hope to join in solidarity with those who suffer most as a result of our government‚s policy, and to influence decision-makers to bring the troops home and to provide reparations to rebuild a devastated Iraq.

The Metropolitan Police Department is the primary city force, responsible for the public streets and non-federal buildings. Most of the parks, monuments, and the grounds surrounding some federal buildings are protected by the United States Park Police.

People who are considering delivering the names of the dead to the White House should be prepared for possible arrest, temporary incarceration and court proceedings. Sentences for convictions can involve community service, or jail for periods of up to 6 months, and/or fines up to 0.

It is possible that the authorities will have orders not to arrest. You will be handcuffed and searched on the spot.

Arrested people are usually transported to a local jail where they may be fingerprinted, photographed, and issued individual citations which will require you to appear in court on a specific date and time. If you are arrested by Park Police, you will probably be given a citation [pay a fine or appear for trial] and released after several hours on personal recognizance.

If the Metropolitan Police arrest you, you could be released with a citation at a local substation.

However, you could be incarcerated overnight and brought before a magistrate in Superior Court. You would then probably be released on personal recognizance and scheduled for a hearing. At that court hearing you will be asked if you want to plead guilty or not guilty. If you want to plead not guilty, you will be given a date to return for trial. If you plead guilty to a minor charge, you may be sentenced right then. It is very unlikely that a nonviolent action will result in jail time. More likely scenarios would be community service, a fine and/or probation.

During processing, you will be asked for identification. Sometimes, the police will write you a citation to return to court and release you from custody. 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.

DC has the option of “post and forfeit,” where you pay (“post”) a set amount of money (a small amount) and forfeit the right to ever get the money back. You are then released, and you never have to return to court. It is not the same as a guilty plea, and does not become part of your record. It is not a criminal conviction. It is considered an administrative adjudication of your arrest, and is akin to receiving and paying a traffic ticket. If this option appeals to you, you may want to have at least in cash.

Finally, the police can decide to hold you. You can be held at Central Holding or any of the six Metro Police District Headquarters. If held in jail, you must be brought before a judge within 48 hours. It would be very likely that nonviolent activists will be released on personal recognizance. 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), the jail has 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 medicine, etc.), it is very important that (1) you tell the booking officers that you need these medications to live; (2) 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.

Charges are possible under the DC Code or under federal laws. Trials for charges under the DC Code and even for minor federal charges are conducted in the DC courts.

DC Charges

Incommoding. This is blocking vehicle or pedestrian traffic on the streets, sidewalks, and other walkways. This is by far the most common charge we see when protestors sit down in the street. Sidewalks are trickier because you generally have a right to engage in free speech activities on the public sidewalks; but if you so clog them that no one else can use the sidewalks, you might be charged with incommoding. Maximum penalty is a 0 fine and/or 90 days in jail. DC Code § 22-1107.

The charge of disorderly conduct is essentially the same. DC Code § 22-1121.

Failure to obey a Police Officer. Often called “failure to disperse,” this charge is possible when the police decide to close a street or clear a path and you refuse to move. The order they give you must be “lawful,” which means that if the police issue an unconstitutional order, there is no offense in ignoring it. But police authority is very broad and we won‚t know if the order was unconstitutional until trial. If the order turns out to have been lawful and you failed to obey it, you can be fined 0-,000. DC Muni. Reg. §§ 18-2000.2 & 2000.10.

Unlawful entry on property (trespassing). Remaining on private property after being told to leave is punishable by a fine up to 0 and/or up to 6 months in jail. For government buildings and the surrounding land, there must be some reason that you have been asked to leave, such as to prevent disruption or to maintain security. DC Code § 22-3102.

Legal Information: National Lawyers Guild, 212-679-5100

Exercising Your Rights of Political Protest Manual (for Washington DC, Philadelphia and Massachusetts) andChecklist for Legal Observers of Protests (7 pages) available at www.nlg.org/resources/organizing.htm Also: Know Your Rights Pamphlets which can be downloaded Partnership for Civil Justice Legal Defense and Education Fund 1901 Pennsylvania NW, Suite 607, Washington, DC 20006 202-530-5630

Political Protest & Civil Disobedience: Exercising Your Right to Political Protest in Washington, DC (Prepared by Partnership and NLG Washington DC)

Demonstrating and Civil Disobedience: A Legal Guide for Activists (Nuts and Bolts Pamphlet for Organizing a Protest and Possible Civil Disobedience) by Gary Francione and Anna Charlton

Francis Anthony Boyle, Defending Civil Resistance Under International Law: Special Edition for Pro Se Protestors (Transnational 1988) available in paperback at Amazon.com.

Memos:

Overview of Federal Criminal Trial; Overview of Federal Sentencing; Summary of Legal Options; What Happens After Sentencing; Problems Paying Fines; and Trial Memos on International Law and Necessity Defenses (for the federal misdemeanor civil disobedience trials of protestors at School of Americas in Columbus GA) available on Bill Quigley’s Loyola Law website