OWS Legal FAQs*
Prepared By: The National Lawyers Guild – NYC Chapter
Last Updated: October 22, 2011
* this is a working document. thank you for your patience.
These questions come out of many conversations with OWS protesters at Liberty Sq. or during marches, and have been collected and answered by members of the NLG-NYC mass defense committee. Please note that this is a working document. A “———-” answer below indicates that we have noted the question and are still researching the subject. If you have questions which are addressed nowhere below, e-mail them to email@example.com.
1. Police use of force and “kettling”
2. Surveillance and recording by police and undercover police
3. Recording by protesters
4. Police confiscation and search of phones/cameras/bags
6. Arrest processes
7. Resisting arrest, police orders, unlawful arrest
8. Mass Brooklyn Bridge arrest class action civil suit
9. Posters, signs, chalk, graffiti
10. Sidewalk protests
11. Public parks, private parks, public/private parks
12. Hate speech / violent speech
13. Prohibited substances
14. Any relevant national security laws
1. Police use of force and “kettling”.
(a) What are the rules governing NYPD use of force? When can police legally use force? Specific use of force questions include: (i) When are police allowed to use pepper spray? (ii) When are police allowed to use batons, and how are they allowed to use them? (iii) If you do not move from a street or sidewalk, are police allowed to push or hit you to force you to move? (iv) How are police allowed to use their scooters or horses against you? (For example, if you are marching in the street without a permit, can the police use their scooters to hit your body to move you?)
Police officers can use reasonable force in the exercise of their duties. They are not permitted to use excessive force. What consitutes reasonable vs. excessive depends on the context of the behavior. Since we can never predict how an individual police officer will behave, we supply Legal Observers at demonstrations and recommend that press attendance also be secured. This helps document police absue and may deter excessive force from being used.
(b) What can you do if you witnessed or have photographic/video evidence of what you believe to be excessive force by police? Which public interest organizations take police brutality cases?
It is important to document police abuse by any means available.
(c) What are the rules around police “kettling”, and when are police allowed to kettle or entrap protesters? What can you do if you are caught inside netting or barricades?
Kettling and entrapping are very different things. Kettling is enclosing people in the street with baricades or otherwise. Entrapment is getting people to commit a crime that they would othersie not engage in.
The penning (or kettling) policy has been in effect since 1995. A legal challenge to the policy resulted in the requirement that police allow people to leave pens and to require some additional openings.
2. Surveillance and recording by police and undercover police.
(a) What are the rules for the police (TARU, and non-TARU) governing NYPD video recording or photography at OWS protests? When are they allowed and not allowed to film/take photos? How long can they keep the film? And for what purposes can they use the film/photography?
(b) What can you do if you believe that police are filming or taking photos unlawfully?
The question here presents no Fourth Amendment issues because there’s no reasonable expectation of privacy, and no NY privacy issues if the video isn’t to be used for a commercial purpose.
NYPD Interim Order 22 (“Guidelines for the Use of Photographic/Video Equipment to Record Police Operations and Public Activities):
- The police may only take video when
- there’s a bona fide need to take the video for crowd control training purposes;
- when it reasonably appears unlawful conduct is about to occur, is occurring, or has occurred during the demonstration
- a bona fide need exists to continuously assess crowd conditions, through the use of live video transmissions, for the proper deployment of police resources.
- There are some hurdles a ranking officer has to jump in order to gain authorization to capture a demonstration.
- The recording has to be consistent with the purpose authorized. I.e., no close-ups of individuals if you’re creating a training video.
- The police will keep the video if it contains unlawful activity or “valuable for any specific purpose,” the video can be kept indefinitely. If not, then it must be destroyed within three years.
- Other things
- Only TARU personnel are eligible to record for these purposes.
Personnel operating video equipment must be in a jacket clearly marked “POLICE,” unless they are part of the Intelligence Division.
(c) Do/can the police keep lists of those known to participate in OWS? How can you know if you are on a list or database?
We believe that the Brookyln Bridge arrests were made in order for the NYPD to secure the names, fingerprints and addresses of protesters. Anyone arrested in certainly on a police databse. People who have been politically active, even if not arrested, should assume that they are included on a database.
(d) What role can undercover police play in protests? What limitations are there on their participation and presence?
Undercover officers have been known to become agent provocateurs. In addition to gathering intelligence information they may attempt to entrap demonstrators to cause them to commit crimes. With some exceptions, this type of behavior is generally upheld as lawful by the courts.
(e) Are undercover police obliged to disclose their police status if you ask them if they are undercover?
3. Recording by protesters.
(a) Are protesters allowed to film or record everything, including the police?
Protesters generally have a First Amendment right to film and record anything that is plainly visible from public places, including police officers carrying out their duties. As long as the filming or recording is done peacefully, and audio is not recorded covertly (see answer to Question 3(b) below), protesters are entitled to full protection under the First Amendment for filming or recording the police in public places. This right is not limited to the press.
(b) Are protesters allowed to covertly record conversations with the police, including while under arrest, or do they risk being charged with wiretapping offenses?
This is lawful in NY. The lay in NY is that only one participant has to be aware of the recording. It is not lawful in some other states. Even in NY it is not lawful to covertly record conversations in which you are not a participant.
The NY wiretapping law is only a “one-party consent” law, so if a protester is a party to the conversation with police that she is recording, then that protester has the right to record the conversation whether the police know she is recording or not. Note that wiretapping laws only apply to audio recording, so protesters do not risk arrest for wiretapping for taking silent video or photography.
4. Police confiscation and search of phones/cameras/bags.
(a) Under what circumstances, if any, can the police search or confiscate your cellphone, camcorder, camera or other recording device? Can they search or confiscate these items when you are arrested?
If you are arrested, your property can be siezed by the police as evidence or as incidental to the arrest (for inventory purposes). They are not permitted to search the contents of such electronic devices unless they have reasonable cause to believe that such device is the instrument of, or contains evidence of, a crime.
There are a variety of scenarios in which the police may confiscate or search your recording device. These include:
- The police procure a warrant to search through your phone/device.
- You consent to the search. be careful not to consent by accident / unintentionally. The best approach is to affirmatively, repeatedly and LOUDLY state: “I do not consent to a search.”
- The police conduct a “search incident to arrest,” meaning you have been arrested and the police can search you, the area within your immediate control, and containers on your person, all without a search warrant.
It is important to note that the courts are split on whether the police can search an arrestee’s cell phone, though the majority of federal courts currently do allow such a search. The main issue is whether a cell phone is a container that is “on the person” or in his/her “immediate control.” United States v. Jones is currently before the Supreme Court on the issue of tracking devices, so that may potentially answer this question in the future.
To demonstrate an expectation of privacy in the device, you should password protect your device. Also, turning off your phones/devices may be a good idea because it demonstrates an expectation of privacy in that device. That being said, this could make the device analogous to a closed container – which brings us back to the container issue in general.
(b) If you have your device password protected, do you have to give the police your password?
Unless you consent by volunteering your password to the police, you do not have to give your password to the police because it would be considered self-incrimination under the 5th Amendment. You can politely tell the police that you explicitly do not consent to the search of the device and then ask to speak to a lawyer. Note that if the arrestee has already received his Miranda rights, is in custody, but then gives his password to the police, that will be considered legal.
This is another good reason to make sure that your phone is turned off if you believe you may get arrested.
However, if YOU ARE SERVED WITH a LAWFUL SUBPOENA for the password, you will have to turn it over. Also, because a password is a digital lock, it is possible for the police to break it BASED ON the closed container issue (SEE ANSWER TO 4(A) ABOVE.)
(c) Are police allowed to delete photos or other information from your devices?
NO. This would be considered tampering with evidence. This could also be a due process issue.
(a) What are the grounds for and boundaries of the “no amplification” rule? What, specifically, is banned? For example, would a cell-phone set on speaker phone, if a number of protesters were listening to the same streamed talk through the phone, break the rule? Would one or multiple computers with their volume on violate the rule?
Although the city and state (collectively, “the government”) cannot make content-based restrictions on speech protected by the First Amendment, the government may impose “time, place, and manner restrictions” on protected speech and expression. 9A N.Y.Prac., Environmental Law and Regulation in New York § 17:23 (2d ed.). Such restrictions must be narrowly tailored to serve a significant government interest. Id. (citing Ward v. Rock Against Racism, 491 U.S. 781, 1989).
The Second Circuit has found the city’s interest in protecting its citizens from unwanted noise to be a significant government interest. Housing Works, Inc. v. Kerik, 283 F.3d 471 (2d Cir. 2002). Therefore, as long as a noise-related regulation is specific (as to time, place, and manner), content-neutral, and does not prohibit all means of communication, the regulation is narrowly tailored. Id.
In New York City, there are several relevant noise regulations. These include, but are not limited to, Title 24, Chapter 2 of the New York City Administrative Code (“NYC ADC”) (environmental regulation), Title 10, Chapter 1 of the NYC ADC (public safety regulation), and § 240.20 of New York’s Penal Law (criminal statute). The environmental regulation prohibits—among other things— the use of a personal audio device to create unreasonable noises in public places, where unreasonable noise means that the sound from the device can be plainly heard by others at a distance of 25 feet or more. The public safety regulation requires —among other things—that one obtain a permit from the NYPD before using sound amplification devices in or near public places. The criminal statute makes it a crime for one to make unreasonable noise with the intent to cause public inconvenience.
Although cellphones and computers are not expressly included in the relevant regulations, and would come down to a fact-specific inquiry before a court, such devices are similar enough to the ones listed as personal audio devices (“personal radio, phonograph, television receiver, tape recorder or compact disc player”) that it is best to keep the devices from reaching unreasonable noise levels. Unreasonable noise levels are laid out (in decibels) in the environmental regulation discussed above. See NYC ADC § 24-218.
(b) Is it possible to challenge the no-amplification rule?
Noise regulations can be challenged on two distinct constitutional grounds. First, they can be challenged on the ground that they are unconstitutional prior restraints on protected speech. See People v. Taub, 337 N.E.2d 754 (N.Y. 1975). Second, they can be challenged on the ground that they are overbroad or vague. See People v. New York Trap Rock Corp., 442 N.E.2d 1222 (1982).
Unfortunately, these challenges will likely fail given that the NYC regulations, like those discussed above, are content-neutral, precise, objective, and explanatory. Again, as long as the regulations create reasonable time, place, and manner restrictions, they will be constitutional. For good summaries of the challenges to noise-related regulations in New York, see 9A N.Y.Prac., Environmental Law and Regulation in New York § 17:23 (2d ed.), and 9A N.Y.Prac., Environmental Law and Regulation in New York § 17:22 (2d ed.).
(c) What are the rules in New York City pertaining to playing music in the street / in parks with or without amplification?
Street music is a protected activity under the First Amendment, even when performed for donations. See, e.g., Goldstein v. Town of Nantuket, 477 F.Supp. 606 (D.Mass. 1979); Davenport v. Alexandria, Va, 683 F.2d 853 (1983) (“There has been shown no safety interest to outweigh the plaintiff’s First Amendment interests.”)
However, even without an amplifier, a person can be guilty of disorderly conduct if she makes “unreasonable noise” “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof.” See Penal Law § 240.20(5).
- “Unreasonable noise” means “any excessive or unusually loud sound that disturbs the peace, comfort or repose of a reasonable person of normal sensitivities or injures or endangers the health or safety of a reasonable person of normal sensitivities, or which causes injury to plant or animal life, or damage to property or business.” See NYC Code § 24-203(ccc).
- This is a fairly subjective standard and so you may be at the police officers’ whim, but perhaps the volume level that would be “unreasonable noise” for un-amplified instruments would be the same as the maximum volume for amplifiers, which is 85-db(A)-at-ten foot.
6. Arrest processes.
(a) What should you expect once you are arrested? Specific questions include: (i) How long are you likely to be detained initially? (ii) How long can you be held without being given water/good or access to a bathroom? (iii) Are there grounds in which you will not be released quickly? What are those grounds? (iv) Are you allowed to communicate with others in the initial period of arrest? (v) What are you obliged to tell the arresting officers? (vi) What will the likely criminal process be following arrest? Over what time period? (vii) What are the likely / possible charges for those arrested in relation to OWS? (viii) What are the potential ramifications of arrest in connection with OWS protests for those who are not citizens? For those with any prior arrests?
Protesers can be issues a summons and released on the spot. The summons contains a return date and location for a court appearance. Usually this is reserved for violations.
Protesters can be taken to a police precinct and held for several hours for processing – including fingerprinting – then given a “DAT” (desk appearance ticket) bearing a date and location of the first court appearance.
Protestors can be taken to “central booking” (in Manhattan, the “tombs” at 100 Centre Street) and held for up to 24 hours until “arraigned”, i.e. brought in front of a judge to consider a bail application. Technically, arrestees should not be detained for mor than 24 hours before seeing a judge. In practice, arrestees are often held for up to 36 hours or longer.
Typical charges for arrestees at demonstrations are disorderly conduct, trespass, resisting arrest, assault.
Immigrants, and in particular undocumented immigrants, must consult with an immigrations lawyer about their particular situation before putting themselves at risk of arrest.
(b) Why does NLG ask for our names? What does NLG do with the information? Does NLG monitor the police and bring cases against the police?
NYC-NLG collects public information (i.e. information that the state already has: your name, address, contact information, charges, court dates and locations) so that we can arrange for coverage on your court date if you wish to be represented by an NLG attourney.
When you are assigned an attourney in court, you can share information with your attourney that will be protected by attorney-client privilege.
(c) What happens if we don’t give the police our names?
If you are arrested and do not provide your name to the police, you will be held longer until such time as they are able to identify you.
(d) What happens to your property when you are arrested? Do the police give it back to you as soon as you are released from detention?
Unless being held for use as evidence against you, your property should be returned to you upon release.
(e) If you have a pet (a number of protesters have small dogs) when you are arrested, what will happen to it?
(f) What warnings must police give prior to arrest? What can you do if you are caught involuntarily in an act of civil disobedience (e.g. penned in on a sidewalk or street) and you do not want to risk arrest?
Generally warnings are only given in trespass situations. If you have been arrested even though you have done nothing wrong, tell your lawyer. Do not make statements to the police.
(g) What legal grounds are there for challenging arrests in connection with OWS?
It depends on the situation, but primarily, the first Amendment to the U.S. Constitution.
7. Resisting arrest, police orders, unlawful arrest.
(a) If you think that you are being arrested on unlawful grounds, what are you allowed to do? Are you allowed to resist an unlawful arrest?
(b) If you do resist, and you get charged with resisting arrest on top of a primary charge, but the primary charge later gets dropped, can you still be charged with resisting arrest?
Resisting arrest charges will be dismissed if the underlying charge is not proven. Hoever, this cannot be raised until trial, except informalyl in the course of plea negotiations.
(c) Can you be charged with “resisting” if you simply “go limp” (do not move) when ordered by police to move (from a street or sidewalk) or when placed under arrest?
(d) What can you do if you think the police are giving you an unlawful order (for example, to move off a public sidewalk)?
8. Mass Brooklyn Bridge arrest class action civil suit.
(a) What is this suit about? Have there been other similar class action suits in the past?
(b) What are the reasons for and against joining this suit? How does this suit differ from individual criminal cases of those arrested?
(c) Is it being done by lawyers who frequently do public interest litigation, or is it “ambulance chasing”? (Note, we have heard this question a number of times. Some OWS protesters have said that they heard it is an ambulance chaser case, and they do not want to be involved if the lawyers are not public interest lawyers.)
This lawsuit has been brought by a public interest law firm located out of Washington D.C. You do not have to take any affirmative action to join this lawsuit. If the class is designated than all protesters arrested on the bridge will be deemed plaintiffs unless they opt out of the class.
We do not advise making any statements or answering any questionnaires about your arrest until your criminal court case is resolved.
9. Posters, signs, chalk, graffiti.
(a) What are the rules about sticking, gluing, stapling, etc any form of sign or paper to walls, lampposts etc? What are you allowed and not allowed to post?
(b) Can you use chalk or paint or other materials on the sidewalk or other surfaces?
10. Sidewalk protests.
(a) What are the specific rules about protesting on sidewalks? Are the only restrictions that you cannot take up more than half the sidewalk, that you must keep a moving picket line, and that you must not block building entrances?
A group of people can protest on the sidewalk so long as they do not block entrances to buildings or prevent other pedestrians from walking past the protest. The general practice recognized by the police is that the group should take no more than half the sidewalk, usually the half closer to the curb, so as to allow others to pass by. Keeping people moving in a picket line helps prevent crowding that may cause blocking of an entrance or of the whole sidewalk.
(b) What are the rules about sleeping on sidewalks?
As with other activities on a public sidewalk, a person may lawfully sleep on a sidewalk so long as no building entrance is blocked and no more than half the sidewalk is used so that others may walk by.
(c) What can you do if you think the police are not permitting you to be on the sidewalk in accordance with these rules?
Address the police officer by name (“Sgt. White . . .”) and politely state that it is your understanding that your group may demonstrate on the public sidewalk so long as building entrances and the entire sidewalk are not blocked. Ask where the police believe there is blocking to allow your group to unblock it. If the police continue to insist your group must move, again address the officer by name and offer an alternative resolution that would still allow the group to be within “sight and sound” of the target of the protest. If given an order to disperse, note the name of the officer giving the order and comply with the order if you do not wish to be arrested.
(d) Is there a public safety or exigent circumstances exception that would allow police to prohibit sidewalk protests entirely? What does that exception allow the police to do? What warrants the assertion of the public safety or exigent circumstances exception?
It is possible that the police could assert the need to clear a sidewalk for public safety reasons, e.g. major construction may create obstacles; an unanticipated large crowd may overflow the sidewalk and flow into vehicle traffic in the street; an emergency may require clearing the sidewalk to allow access by an ambulance and medical personnel.
11. Public parks, private parks, public/private parks.
(a) What rules govern assembly and sleeping in public parks? Private parks? Private parks with public obligations (i.e., like Zucotti Park)?
(b) If OWS wanted to expand to other parks, what park laws could permit or restrict that?
(c) Why is OWS permitted to stay in Zuccotti Park? Could the private owners of the park require the protesters to leave the park, and if so, on what grounds? Could the private owners enlist the city’s assistance in removing the protesters, and if so, on what grounds?
(d) What rules related to Zuccotti Park are relevant to OWS? For example, as related to sanitation and cleanliness?
(f) What are useful examples of NYC protest and non-protest activities that have laid out, exemplified or tested the limits of public access to public or private spaces for expressive or non-expressive activity? (i.e., Sleeping protest in front of Gracie Mansion as expressive activity. Camping out in front of stores for the release of a product, movie, etc. as non-expressive but permitted activity.)
12. Hate speech / violent speech.
(a) What rules restrict speech that may be supporting or calling for violence or hatred? What standard must be met to prohibit such speech? What can be done (i.e., arrest, police use of force, civil suit) to prohibit or respond to such speech?
(b) What can protesters do if someone is calling for violence or engaging in hate speech?
13. Prohibited substances
(a) What are relevant laws concerning drug use, public consumption of alcohol, and weapons in New York City? (There are a lot of people from outside NY at the square.)
Alcohol – posession of open container of alcoholic beverage is an offense in New York, e.g. beer bottle, wine or spirits.
Marijuana – if hidden, can’t be seized except pursant to a lawful search (probably cause of a crime having been committed, incident to a lawful arrest, etc.)
Drugs, inclding marjiuana, can be seized and you can be arrested if you are smoking in public or the drug is visible.
14. Any relevant national security laws
(a) Are there relevant national security laws that do or could affect protest near Wall Street – i.e., near the New York Stock Exchange, the World Trade Center? If so, what are those laws and what are their ramifications for public assembly and protest?
Prepared by the New York City Chapter of the National Lawyers Guild
113 University Place, 8th Floor, New York, NY 10003
Tel: (212) 679-6018