Home » Uncategorized » Legal Briefing for People Considering Civil Disobedience in Louisiana

Legal Briefing for People Considering Civil Disobedience in Louisiana

PART  1:  FREQUENTLY ASKED QUESTIONS

What Kinds of Non-Violent Civil Disobedience Actions Can Result In Me Getting Arrested?

For hundreds of years, social movements around the world have used non-violent civil disobedience as a tactic to challenge unjust laws. In the US, the First Amendment generally protects your right to protest and engage in political speech. However, the courts have said that the government can limit where and how protests occur. If you block a sidewalk, trespass on private or restricted property, block the street, or fail to follow the orders of a cop you can get arrested even if you weren’t planning to. Further actions of non-cooperation after you have been arrested, like going limp, can result in additional criminal charges. Common charges brought against protesters for acts of civil disobedience include criminal mischief, criminal trespass, entry on or remaining on land after being forbidden, obstruction of a highway, disturbing the peace, resisting an officer and failure to disperse. More details about charges frequently faced by protesters can be found in the document “Common Louisiana Laws Enforced Against Protesters.”

What Are The Consequences If I Am Prosecuted and Found Guilty? Will I Have To Pay Restitution?

Although your intention could be peaceful protests, you may face fines, jail time, and/or probation for participating in demonstrations. Misdemeanors are usually punishable by up to one year in parish jail and/or a fine up to $1,000. For example: Say demonstrators occupy a highway or major road as an act of protest. In Louisiana, occupying a highway can be both a misdemeanor or felony offense, depending on whether human lives are endangered. A misdemeanor highway occupation offense comes with a $200 fine or up to a six-month jail sentence. Another common protest charge is vandalism, which can be both a state or federal offense. It is a crime to damage or destroy any property of the U.S. or Louisiana governments. If the damage is less than $500, you could get up to a $500 fine or some jail time. But more expensive acts of vandalism— greater than $50,000 — come with hefty fines of up to $10,000 and up to 10 years in prison. If a protest gets more heated and demonstrators push past police lines or barricades, you could face charges of resisting and/or assaulting an officer and be forced to pay a fines of not more than $500 and up to six months in jail. Note that you could face multiple charges against different officers and, therefore, multiple $500 fines.

Restitution is different than a fine. Restitution is designed to make the injured party whole again—for example, if a window is broken during an action, then protesters might be ordered to pay restitution (money) for the cost of repairing the window. Companies like ETP regularly argue that protest actions on one small parcel of land cost them huge sums of money—for example $65,000 a day— but a judge will determine what, if any, restitution is granted. Restitution can also be ordered to a municipality. For example, a DA in Massachusetts dropped charges against two climate change protesters for their 2013 “Lobster Boat Blockade” but ordered them to pay $2,000 each in restitution to the local government and police force.

How Should I Prepare?

There is often a lot of preparation before an act of civil disobedience, especially in the time of a pandemic. You and your support/affinity group will likely want to: attend trainings on non-violent civil disobedience; share information with each other including your name, birthday, medical needs, and emergency contact numbers; make sure to have one person who will be YOUR support person to follow you through the process and be the point of contact with the jail, the legal team, your family and friends; know where people who are arrested are likely to be taken; discuss whether or not folks want to be bailed out and if so, who will cover bail money; identify lawyers who are willing to help; circulate and write in magic marker on your skin the legal hotline number; and make a plan for how to document your possible arrest. On the day of the action, wear warm clothes, PPE (personal protective equipment including a face mask and gloves), hand sanitizer, and have some form of identification—but nothing else—on you. Do not carry money and make sure you are not carrying a penknife, medicine, or drugs, if at all possible. Try to maintain a distance of at least six feet from other demonstrators as much as possible, and self-sanitize your hands often. Your cell phone should always be password (not thumbprint) protected, but do not have your cell phone on you if you plan to be arrested. If possible, give your phone to someone else to hold before you get arrested.

Are There Special Concerns To Be Aware Of Related To COVID-19?

 Yes. COVID-19 is still a global pandemic, and most major U.S. cities have yet to return to normal functioning. You should always wear a mask to protests to avoid spreading germs to others, and be aware that other attendants may not. The Centers for Disease Control and Prevention recommends maintaining a distance of at least six feet from others in public places during COVID-19, which is a difficult — if not impossible — guideline to follow at a protest. Attending a protest during a pandemic is an extremely high-risk activity, and elderly, immunocompromised, and other vulnerable people should check in with their doctors before attending demonstrations.   Jails often do not adhere to social distancing and masking protocols.

How Long Will It Take For My Case To Work Its Way Through The System?

 The District Attorney has two years to prosecute misdemeanors and between four and six years to prosecute felonies, depending on the severity of the alleged crimes. Municipal charges, however, can vary, with some municipalities only allowing prosecution for six months for misdemeanors with fines. You should be prepared to return to court in the parish where the action occurred multiple times.

What Is The Difference Between a Federal and a State Crime?

If your civil disobedience takes place on a federal building (such as the Federal Courthouse in New Orleans) or on any federal property you may face federal charges. If your civil disobedience takes place on state or local property like a sidewalk or street, you will likely face state or local charges. That said, federal authorities can defer to states, and let a state prosecute crimes that happened on federal property. Most low-risk civil disobedience protesters are charged with state or local misdemeanor-level charges.

What Is The Difference Between a Misdemeanor and a Felony?

A misdemeanor is a crime that is less serious than a felony. Misdemeanors are usually punishable by up to a year in parish jail and/or a fine up to $1,000.

What Happens After I Get Arrested?

  • Arrest After arrest, you will be handcuffed and searched on the spot. Then you will either be cited and released or transported to jail, most likely the local parish jail.
    • You are required to give the cops your name and address. Other than that, do not say anything to the police or to anyone who comes to talk to you while you’re in custody. If anyone asks you any questions you can say: “I’m going to remain silent and I would like to see a lawyer.” Repeat this phrase anytime you are questioned.
  • Booking Booking usually happens right when you get to jail, but can be delayed for hours. You should plan on time in jail for booking which might be as little as 2-3 hours or as long as 12 hours or more, including overnight. The guards will take your picture, search and fingerprint you, and ask questions about your medical history and identity (tattoos, home address, etc.). Personal items like your wallet and cell phone will be taken from you (you should get them back when you are released). Make sure not to have anything in your possession which might get you in additional trouble, such as medicines, drugs, a penknife, etc. You can ask for a copy of the booking receipt for items taken from you at this time.
  • Jail Jail means sitting around. Just getting processed in and out takes hours. You should expect to spend a number of hours in police custody; you may have to stay overnight or over the weekend.
    • The cops can lie to you about your charges and the penalties.
    • Do not answer any questions, at any times, without a lawyer present. Do not sign anything that they say is a statement you made. Do not talk to the DA, the cops, or other inmates about what happened.
    • Guards may be rude to you.
    • Water and food, when available, will be low quality.
    • To avoid contracting or spreading COVID-19, try to avoid coming into contact with other people being held.
  • Bail Bail is an assurance to the court that you will return for your hearing. The first court hearing after an arrest is called your “First Appearance.” During that hearing, a magistrate or judge determines if there is enough evidence presented to support your arrest and a bail amount is set. Bail may be pre-set for state misdemeanor and municipal offenses and may not require a hearing. Judges can reconsider bail at any time, but you cannot get released with open charges until a judge has set your bail.
    • Some people will get a free bond, known as a Release on Recognizance (ROR), which means that no bond needs to be paid to be released.
    • Many civil disobedience actions make a bail plan ahead of time so that people can be released as soon as possible.
    • Many people use bond companies to cover their bail—the companies charge a non-refundable percentage (usually 10-20% of the bail amount).
    • If you post bond and get released, you’ll get a subpoena mailed to you with your next court date.
    • Sometimes you are given a court date when you are released. Make sure that the address you have on your bond is one where you live, so that you will receive the subpoena when they serve it to that address. If you move before you get a subpoena, make sure you update your address with your bondsman and/or the court. Do not miss a court date!
    • If you are not able or do not want to post bond and get released, the state can let you sit in jail for up to 45 days for misdemeanors and 60 days for most felonies before it has to decide whether or not to accept the charges against you.
  • Arraignment Once your case is accepted, your first court date is called your “arraignment.” This is when you will plead guilty or not guilty. If you plead guilty, you will be sentenced. If you plead not guilty, a new court date will likely be set and you’ll have to come back to court another time. Arraignment usually happens within a couple of days after arrest.
  • Additional Hearings Depending on your case, you may have to return to court for additional hearings—for example: a trial and sentencing. It is very important to never miss a court date. If you are unable to make a court date, notify your lawyer immediately.

Will COVID-19 Affect My Arrest?

It is unclear if COVID-19 will affect your arrest and detainment. While there have been reports that police have simply cited and released people for civil disobedience, numerous jails throughout the country have held people in crowded cells through the night or longer despite the high risk of COVID-19 transmission.

Will My Case Go To Trial?

Most cases do not go to trial—instead the DA reaches an agreement with a defendant that is called a “plea.” If you are charged with a crime punishable by six months or more in jail you have the right to a trial by jury if you want to go that route; crimes punishable by less than six months in jail are not entitled to a trial by jury.

Are There Other Consequences of Being Arrested? Of Being Convicted?

Yes, any encounter with law enforcement can have additional consequences—even if you are arrested but never prosecuted or convicted. We call these “collateral consequences.” Some people don’t experience any collateral consequences, and they are often unlikely. That said, it is important to know what collateral consequences are in the universe of possibility. Collateral consequences are more serious for felony convictions.

The collateral consequences of being arrested or convicted of a misdemeanor may include:

  • Being denied or losing a professional license.
    • Many applications (to get certain jobs, to enter graduate school, or to secure a nursing, law or medical license) ask whether you have ever been arrested. People in the past have lost jobs or been denied admission to a school or licensure into their profession simply for having an arrest on their records.
    • Some licensing boards are required to revoke your license while others are allowed to consider a conviction as a factor in disciplining a licensee.
    • No one knows how seriously the government, private employers or licensing boards will take a non-violent civil disobedience arrest.
    • If you work in a school, even in a support, part-time, or temporary capacity, you will be subject to a criminal background check and may be denied employment or lose your job upon conviction if already employed.
  • Losing your job.
  • Losing your public housing assistance. Any person convicted of a misdemeanor, and their entire household, may be evicted or become permanently ineligible for government housing assistance (Section 8 and public housing). You may also be permanently excluded from even visiting a friend or family member who lives in public housing.
  • Increased penalties for future convictions.
  • Losing or having your federal or state financial aid frozen.
    • A misdemeanor conviction will not stop you from receiving a Pell Grant. However, people who are convicted of crimes and sentenced to prison often have federal benefits taken away from them while they are in jail. For example, people in jail or prison cannot receive Pell Grants while they are in jail. Pell Grants are not allowed to be awarded to people who have criminal convictions for drug offenses, but other misdemeanor convictions are usually not a problem.
  • Losing Social Security income.
    • Social security does not pay benefits to people who are convicted and incarcerated. Social security benefits are suspended for the entire month if one is incarcerated for any portion of that month. For example, if you are sentenced to a three month sentence you will usually lose benefits for four months. This applies to both social security retirement benefits and to social security disability benefits. If you are convicted but receive no prison time, you would keep receiving social security benefits. If in jail or prison, the benefits would be suspended while inside and re- started once released. If you are fined upon conviction and refuse to pay the fine, future social security benefits could be offset in collection of the fine.
  • Jeopardizing your immigration case or being deported if you’re a non-citizen.

In Louisiana, people with felony convictions sometimes experience additional collateral consequences, including not being able to vote (if they’ve served prison time in the last five years), own a gun, temporarily losing social security benefits, diminished prospects to foster parent, and a loss of spousal support.

Will I Have To Report To Schools and Employers That I Have Been Arrested?

If you are asked, you must tell the truth. You can say that you were arrested for a petty offense (misdemeanor) in connection with an act of nonviolent civil disobedience.

Can My Sentence Be Deferred or Suspended?

Louisiana law allows for certain sentences to be suspended and deferred. This relief is generally available to people on their first offense. At the end of their sentence if there have been no further charges or convictions, a court can “set aside” the conviction and dismiss the prosecution. This has the effect of an acquittal. Deferred and suspended sentences do not disappear from your record though—they can be brought back and treated as a prior offense for sentencing enhancement purposes if you are arrested again.

Can My Record Be Expunged?

“Expungement” means removal of a record from public access but does not mean destruction of the record. An expunged record is confidential, but remains available for use by law enforcement agencies, criminal justice agencies, and other state agencies as stated under Louisiana law. The Justice and Accountability Center has excellent manuals and resources about expungement available on their website.

Can I be sued or held civilly liable for organizing a protest?

If you want to organize a protest, there may be a risk of being sued and held individually civilly liable for damages or actions caused by or at the protest – even if you didn’t encourage anyone to commit acts of violence or damage property. 

The courts are still in the middle of resolving this issue, in a case called John Doe v. DeRay McKesson. After Alton Sterling was killed by police officers on July 5, 2016, protests in Baton Rouge, Louisiana erupted and people took to the streets to express outrage, call for accountability and justice, and demand change.  Police responded not by engaging with the substance of protestors’ calls, but with riot gear, excessive force, and illegitimate arrests. And one police officer brought a civil suit for monetary damages based on allegations that, in the midst of the protest, someone allegedly threw a rock-like object and hit the officer. The individual the officer sued is not the person who threw the object, but DeRay McKesson — an activist who was there to add his voice and to amplify others.

The courts have gone back and forth over whether the officer could sue McKesson for “negligently organizing” a protest. The trial court judge threw the case out, but the Fifth Circuit Court of Appeals  disagreed. The Court of Appeal first concluded that Mckesson had no control over the individual who threw the object, and had not intended for the object to be thrown. Yet the judges concluded that Mckesson could be liable for the officer’s injuries.  The judges decided that during the protest, Mckesson (according to the judges’ reading of the officer’s allegations) directed others onto the street in front of police headquarters, purportedly in violation of a Louisiana law. Because that act was allegedly not protected by the First Amendment, the panel reasoned that Mckesson could be liable for any harm that followed — including another person throwing an object at an officer — as long as it was foreseeable. And, the panel concluded, it was foreseeable: As soon as people stepped out onto the street, police officers would inevitably come to enforce Louisiana’s laws, and that was enough to expect that violence could occur.

In November 2020, however, the U.S. Supreme Court reversed the Court of Appeal. The Supreme Court didn’t explicitly say that the Court of Appeal was wrong, but said that the Court of Appeal should have asked state courts to weigh in on state law issues before deciding an issue that touches on free speech rights like they did here.

Summary: The courts are still undecided on whether a protest organizer can be sued for the actions of protesters who commit acts of violence or property damage. There is a substantial risk that other police officers or property owners will try to sue protest organizers.

Are There Special Considerations for Non-Citizens?

Yes. Non-citizens face more legal difficulties than citizens who engage in civil disobedience. Commission of a criminal offense, or even just an arrest, may affect your ability to stay in the U.S. It is strongly suggested that non-citizens consult with an immigration attorney before engaging in civil disobedience.

Are There Special Considerations For People Under 18?

Yes. People under the age of 18 are often taken to different facilities designed for minors. People under the age of 18 may not be allowed to be released from jail until their parent or guardian arrives to pick them up. Additionally, they may be prosecuted in juvenile court and be given different sentences than adults for the same action.

Are There Special Considerations For Queer, Trans, and Gender Non-Conforming Individuals?

Yes. Queer, trans and gender non-conforming folks who have concerns are encouraged to speak to a lawyer before engaging in civil disobedience. If you have legally changed your name but have not yet updated your identification, you may want to carry a copy of the court order for your name change. If the correct gender marker is not on your identification, you may want to carry a letter from a doctor or therapist regarding your transition. You may want to bring medications with you, in their original bottles, along with your prescription.

If you are arrested, you do not have a legal right to be housed according to your gender identity, but you and your supporters can advocate for the placement of your choice. In “an effort to protect you,” a jail may house you alone. Transgender, gender nonconforming, and queer people are at increased risk for physical and sexual violence in jails.  Where you will be housed depends on the jail- most jails do not have policies regarding the housing of transgender or gender nonconforming people. Some jails house people according to what is on their identification and others house people depending on their assigned sex at birth or genitalia.

How Do I Get Legal Assistance If I Am Arrested?

If you are arrested you have the right to be represented by an attorney or to represent yourself. If you are indigent you may qualify for a free public defender. There is a great network of movement lawyers in Louisiana and we will try to provide you an attorney for free if you want.  Please contact the National Lawyers Guild. Alternately, you can always hire an attorney of your choice to represent you.

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