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Protest But Don't Go to Jail


by: Edward Garris

Mon Jul 08, 2013 at 10:30 AM CDT


Henry David Thoreau did it.  Mohandas Gandhi did it.  Martin Luther King, Jr. did it.  

They all committed acts of civil disobedience and spent time in prison for the privilege of doing so.  Protesters at the Texas Capitol last week ensured their voices were heard and yet seemed nearly immune from arrest.  However, there are rules in place stating that this is not the case, and there are rumors that this week, the law enforcement presence will be stronger than last week's, if only more numerous.  

While we can't necessarily offer legal advice, we have poked around a bit, asked some questions, and now offer some things to consider when protesting at the Texas Capitol.  

To see the rules, read below the jump.

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How does one avoid arrest and imprisonment?  Know the rules. Although there is a large and robust body of First Amendment law that protects protesters, several things complicate the situation.  First, the Texas Constitution has its own protections; second, the protests are on the Capitol grounds; third, protests - or, at least, participation - are occurring in a Senate or House chamber, or in a committee room.  This is to say that while the normal rules apply, other rules apply as well.

Rules of the House (and Senate)

If you are in the House Chamber, you are subject to the Texas House Rules.  Rule 1, Section 5 states the following:

Section 5. Preservation of Order and Decorum - The speaker shall preserve order and decorum. In case of disturbance or disorderly conduct in the galleries or in the lobby, the speaker may order that these areas be cleared. No signs, placards, or other objects of similar nature shall be permitted in the rooms, lobby, gallery, and hall of the house. The speaker shall see that the members of the house conduct themselves in a civil manner in accordance with accepted standards of parliamentary conduct and may, when necessary, order the sergeant-at-arms to clear the aisles and seat the members of the house so that business may be conducted in an orderly manner.

Similarly, the Senate has its own rules which apply if you are in the Senate Chamber.  Senate Rules 3.02 through and include 3.06 state the following:

NO EATING OR DRINKING IN SENATE CHAMBER
Rule 3.02.
No employee, Senator, Representative, or other person shall be allowed to eat or drink in the Senate Chamber proper at any time. The Sergeant-at-Arms shall strictly enforce this rule.

MESSAGES TO MEMBERS
Rule 3.03.
Messages or call slips shall not be delivered to members of the Senate when a roll call is in progress. Individuals desiring to pass a message to members of the Senate must sign their names to that message.

POSTERS, PLACARDS, BANNERS, AND SIGNS
Rule 3.04.
No poster, placard, banner, sign, or other similar material shall be carried into the Senate by any person, and no person shall attach or affix any poster, placard, banner, sign, or other similar material to the walls, rails, seats, or bannisters of the Senate Chamber. This rule shall be strictly enforced.

APPLAUSE, OUTBURSTS, OR DEMONSTRATIONS
Rule 3.05.
No applause, outburst, or other demonstration by any spectator shall be permitted during a session of the Senate. This rule shall be strictly enforced.

PUNISHMENT FOR OBSTRUCTING PROCEEDINGS
Rule 3.06.
The Senate, during its sessions, may imprison for 48 hours any person, not a member, for violation of the Senate rules, for disrespectful and disorderly conduct in its presence, or for obstructing any Senate proceeding. (Constitution, Article III, Section 15)

Two notes: Rule 3.05 has the following annotation: "After repeated warnings to persons in the gallery to refrain from demonstrating, the chair may direct the Sergeant at-Arms to clear the gallery and lock the doors leading to the Senate Chamber (55 S.J. Reg. 1117 (1957))."  Also, Rule 3.06 is derived from the state constitution which says:

Sec.15. DISRESPECTFUL OR DISORDERLY CONDUCT; OBSTRUCTION OF PROCEEDINGS. Each House may punish, by imprisonment, during its sessions, any person not a member, for disrespectful or disorderly conduct in its presence, or for obstructing any of its proceedings; provided, such imprisonment shall not, at any one time, exceed forty-eight hours.

Those are the published rules, and they apply to their respective chambers, and to the committees and the rooms where the committees are held.  Moreover, if a committee promulgates further rules at the start of a hearing, those rules have the same binding effect and force of law as the rules just posted here.

Adding further uncertainty is the fact that these rules have not been heavily litigated.  As a result, judges have had few opportunities to interpret them to provide more clarity as to what is acceptable conduct on the part of the protesters, and what conduct will land someone in jail.  Because no one can be absolutely certain how far lines can be pushed, or where they will be drawn, protesters are proceeding at their own risk.

ACLU Advice

The ACLU of Texas has promulgated advice on protests which, as they note, is not legal advice, but does offer some guidance on the laws surrounding peaceful protests. Two points are worth noting here:

Areas specifically opened for speech:

These locations are not traditionally open for speech, but the government has specifically designated them for some public discourse. Examples include public universities, public schools and public meetings. These areas generally have an intermediate level of protection from regulation, although sometimes they receive the highest protection, like the first category. [emphasis added]

'Private' government property:
This includes all other public property that has not historically been a place of public expression and has not specifically been designated one, such as city-owned property leased to a private group. Although technically public property, it does not qualify as a public forum. Government may restrict speech there so long as the restrictions are reasonable and not viewpoint-based.

IF YOU ARE APPROACHED BY LAW ENFORCEMENT
Be conscientious about your actions. Don't argue: Anything you say or do can be used against you. Arguing or fighting may give police an excuse to arrest you.

ON FOOT:
If you are stopped while you are on foot and have not been detained, you are not required to answer officers' questions.

SEARCHES:
The police may pat down your clothing if they suspect that you are concealing a weapon. Don't resist or touch the officer, but make it clear that you don't consent to any further searches.

BEING DETAINED:
If the police detain you, you may be required to provide your name. Ask if you are under arrest. If so, ask to see a lawyer. If not, ask if you are free to leave.

POLICE COMPLAINTS:
If you think the police have acted outside their authority, don't protest or resist on the scene. Write down officers' names, badge numbers, and patrol car numbers. File a written complaint with the police and the ACLU.

The full text can be read here.

You Got Arrested. Now What?

Anyway, so let's assume you followed all the guidelines, were heard, were reasonable, and managed to be arrested anyway.  What happens next?  

It depends.  According to criminal defense attorney Chantal Eldridge, the result could be something similar to a traffic ticket, or it could be as bad as getting booked.  

According to Eldridge:

"If you get a Class C disorderly, you will generally get a ticket with an appearance date.  However, if you are detained for something more serious, such as misdemeanor resisting arrest or a felony such as evading arrest, you are going to be taken into custody, booked at the Travis County Sheriff's Department and taken before a Magistrate relatively quickly, and a bond is set."  

Eldridge advises that while judges have been making themselves available in recent days to bond out people relatively quickly, normally this is not the case.  Generally, pretrial services will interview the individual to determine whether they qualify for personal bond. If he does, he is released on a personal bond. If not, the individual or his family will need to hire an attorney or bonding company to bond him out. They will pay the bonding company between 10-20% of the face amount of the bond to be released.

If an attorney secures their release, they will pay a fee, and the attorney will advocate to a judge why the individual should be released on a personal bond. Once released, the person will need to reappear on her court date until either she has hired an attorney or an attorney is appointed to represent her.

In short, protest is necessary, but it is not easy.  It is fraught with risk and sacrifice. How much risk and how much sacrifice is the decision of each person, but for an informed protester, the factors above deserve review and consideration.  



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Do not republish without express written permission.


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