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Advice for Lawyers: Civil Disobedience 101

Advice for Lawyers: Civil Disobedience 101

By Bill Quigley quigley77@gmail.com  last revised 1-18-16

Bill Quigley has been a social justice lawyer for nearly 40 years and law professor for 25 years and has been involved in hundreds of civil disobedience actions and legal cases in state and federal courts across the US.  These are his opinions based on his experience.  It is wise to make your own decisions based on your own research and analysis.  Hopefully this will help.

“Those who profess to favor freedom, yet deprecate agitation, are men who want crops without plowing up the ground. They want rain without thunder and lightning. They want the ocean without the awful roar of its many waters. This struggle may be a moral one; or it may be a physical one; or it may be both moral and physical; but it must be a struggle. Power concedes nothing without a demand. It never did and it never will.”

– Frederick Douglass, African-American abolitionist

What is Civil Disobedience?

Civil disobedience is conduct that intentionally risks arrest to make a political statement.  CD has been a part of social change movements for centuries and an essential part of the founding of the USA and all the movements for social change in our nation’s history.[1]

Aren’t Lawyers Prohibited from Advising People About Civil Disobedience?

Some lawyers think lawyers cannot have anything to do with people who are considering civil disobedience.  That is not correct.  What is accurate is that legal ethics say lawyers cannot assist people in breaking the law.  However, all lawyers advise people.  The ABA Model Rules of Professional Conduct make it clear lawyers can explain what the law is and how it might be applied to people who are considering risking arrest.[2]

Lawyers should not be involved in the actual planning of the civil disobedience because of potential ethical problems and because the lawyers might become fact witnesses if they help plan the CD.

However, lawyers can and should be prepared to answer questions about what are the legal consequences of various scenarios that people or groups are considering.  There is nothing unethical in explaining differences in jurisdiction, prosecution and sentencing based on locale or conduct.  Nor is there anything unethical in explaining the different types of conduct and charges that makes a misdemeanor different from a felony.   E.g.  In protests outside of military bases, there are usually places where CD could trigger federal prosecution and places where the exact same conduct could trigger state or local prosecution.  Often a few feet one way or another can have significantly different consequences.

Legal Advice for People Thinking About Civil Disobedience

Lawyers can provide legal and practical advice for people who are considering civil disobedience.

What Are the Legal Consequences of Risking Arrest?

The lawyer should make sure people considering CD know what the consequences are.  The last thing anyone wants is someone who enters into CD without fully understanding the possible consequences.

In practice, there are two main areas of concern.

First, people should know that there are much more serious consequences for people who have citizenship issues.  The lawyer should insist that non-citizens consult with an immigration lawyer before deciding whether to engage in CD.

Second, advise people that arrests for misdemeanors or felonies are often required to be disclosed in applications to become doctors, lawyers, nurses, teachers, hairdressers, nursing aides, security guards, and other many other professions that require licenses.   That does not mean that people who have been arrested or convicted are automatically excluded from those professions but they should expect to have to fully explain them.

Here is an example of a legal briefing for people considering non-violent civil disobedience: https://ccrjustice.org/sites/default/files/assets/Legal%20Briefing%20for%20CD%20NSM.pdf

What Should People Organizing Protests Where CD Might Occur Do in Advance?

Most civil disobedience actions are only a small part of an otherwise legal protest.  Protests themselves are protected by the First Amendment to the US Constitution – the right to freedom of speech and the right to freedom of assembly.  Government often tries to discourage protests by making unreasonable demands on protestors to get a permit, pay a fee, pay for police protection and the like.  But protests on public property where protestors are not blocking the rights of other members of the public to use the property should be protected and cost nothing.  If there is a pattern of government interference with the right to protest, people should seek to change the government’s activities.

Preparation helps a lot.  There are a lot of resources out there about how groups might plan on doing CD.   For example: http://www.actupny.org/documents/CDdocuments/CDindex.html

In order to protect the constitutional rights of people to protest, it is wise to ask trained legal observers to monitor the action.  The National Lawyers Guild trains legal observers.

If some people in the protest are considering risking arrest in CD actions, it is usually wise to encourage them to let the protest organizers know that so that people who do not want to risk arrest can stay out of the way and not be arrested.

What Are the Practical Consequences of Risking Arrest?

People who are engaging in protest activity where there is a possibility that they may be arrested should not carry any weapons or drugs on their person.  Not even prescription drugs unless those are in the bottle from the pharmacy that has their name on it.  No phone, no watch, nothing.  It is usually wise to carry an ID.

Do advise people who are risking arrest to have a support person who has the money to bail them out, access to prescription medicines, and a phone that can accept collect calls.

Make sure people know they could be in jail for a while, maybe even 24 hours, before they bail can be made and they can be released.

Lawyer Representing CD Defendants in Court

The lawyer has to be willing to be go outside her comfort zone in these cases. These are often not ordinary criminal defense cases.  People who engage in CD often have goals that do not prioritize a finding of not guilty.  They are often more interested in having their say and telling the truth than having their case dismissed.   Some want court over as soon as possible and want to minimize the consequences.  Others do not.  Listen and find out who wants to do what.

Do not say no.  When CD defendants ask questions about unusual ways of being in court or presenting their story, it is not best to say “You cannot do that in court.”   Do say, “If you do that, these are the possible outcomes.”  Many of the people who do CD have some very creative ideas about trials and how to act in the courtroom.   The lawyer’s job is to educate people about how the case will likely proceed and advise people of the consequences of their choices.

Do be prepared to spend a lot of time listening to ideas, answering questions, and explaining the basics of trial procedure, evidence and sentencing.  The people who engage in CD are usually skeptical of the system, rightfully so.  They are also probably skeptical about you as well until you earn their trust.  You will earn their trust, but like all relationships, it takes time.

Do be clear.  Do not use legalese.  Take the time to explain what is next, who the people in the court will be, where people will sit, how law enforcement will act, and so on.

Do prepare written question and answer materials if there is a big group involved.   Find out the questions people are asking and prepare short clear answers.

Do assume that everything you say or write will be made public at some point.   People who complained about surveillance of email and phone calls used to be called paranoid.  Now they are called people.  Act accordingly.  Make sure you write every email in such a way that you will be comfortable if it is published on the internet.

Do not be the one who talks to the media.  Do let the defendant speak for herself as much as possible.  If defendant is in jail, let supporters speak as much as possible.  Media attention is important to educate about the cause.  Let the people who were working on the cause before you arrived and who will be working on it after you leave speak about the cause.

Do help people who want to be creative at sentencing.  Judges sometimes are flexible in hearing out people who they have convicted but are beginning to understand. E.g. One convicted defendant urged a judge not to send him to a jail without walls.  The judge asked why not?  Because, he said, I will walk away.  I refuse to build walls in my mind.  E.g. You would not think a judge would let a convicted person sing at their sentencing, but it has happened.

Additional Information:

National Lawyers Guild Legal Observer Program and Training Materials:

http://www.nlg.org/legal-observer%C2%AE-program

ACLU Guide to Civil Disobedience at Public Universities:

https://www.aclunc.org/our-work/know-your-rights/civil-disobedience-public-universities

 

 

 

 

 

 

[1] Quigley, “The Necessity Defense in Civil Disobedience Cases: Bring In the Jury,” 38 New Engl L Rev 3, 14-26 (2003).

[2]  ABA Model Rules of  Professional Conduct, Rule 1.2 (d) states: “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.” Comment 9 of the ABA Committee makes this even more clear: “Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.” (emphasis supplied).          Online at: http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_2_scope_of_representation_allocation_of_authority_between_client_lawyer.html

See also Robert M. Palumbos, “Within Each lawyer’s Conscience A Touchstone: Law, Morality and Attorney Civil Disobedience,” 153 U Penn L Rev 1057 (2015) See law review articles cited in note 37 in at 1064.

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