A Force for Freedom: Representing Protestors and the Constitution

Scott Holmes is an assistant clinical professor of law, supervising attorney for the Civil Litigation Clinic at North Carolina Central University School of Law, in Durham, North Carolina.

“One day,” she said, “it was easier to drive two hours to Raleigh and get arrested than to stay home.” That’s how one of my clients explained her impetus to protest the North Carolina legislature about cuts to education, mental health treatment, and food assistance. She was not alone. More than 900 people in North Carolina have been part of what was called the “Moral Monday” protests at the North Carolina General Assembly between April and July of 2013.

These are my clients. I have been representing people charged with protesting-related crimes for more than a decade: “anarchists” who allegedly defaced property at the Republican headquarters; grandmothers protesting outside a school board meeting; “Occupy Movement” protestors demonstrating against income inequality; and members of the DREAM team, undocumented youth who have grown up in the United States and are asking for legal rights.

I defend these individuals because of personal convictions (my Quaker spiritual roots), but also because the right to assemble and speak freely is one of the cornerstones of our democracy. With concerns for public safety in our War on Terror and the militarization of our police during the War on Drugs, police have created a hostile and sometimes dangerous environment for protesters who take their message to the street. At the same time, officers face a real challenge when confronting protesters who are not traditional criminals, balancing the duties of their job with their own commitment to free speech and democracy. Both protesters and law enforcement share a commitment to free speech, but they find themselves in conflict over what that means.

As I have represented protesters, I have noticed common patterns, themes, and concerns that are present in many of these situations. Many of the same legal issues arise in different contexts. Many of the protesters, prosecutors, and judges have the same questions and concerns. Here are my thoughts about some of these aspects of representing protesters, which may be helpful.

Meeting Your Client

Group Consultations

My first Moral Monday consultation included more than 30 people, and group consultations immediately present challenges to a legal practice. When representing a large group of protestors, you still must provide the same information as you would in an initial client interview, and make sure you are clear about the professional duties associated with representation.

  1. Begin a large group meeting with some “lawyer speeches” about confidentiality, conflicts of interest, private information, the “attorney-client privilege,” and individual duties.
  2. Explain to the group the duty as their lawyer to represent each of them individually and the duty to keep all information confidential.
  3. Discuss situations where the criminal representation of multiple defendants charged at the same incident can give rise to conflicts of interest and how that can be addressed. Make sure people are willing to waive that potential conflict and keep the door open to discussing any conflicts that may arise during the course of representation.
  4. Clarify that part of an attorney’s job is to help clients learn about the criminal process and make decisions that best fit their situations, regardless of where the broader group wants to go with the cases.
  5. Create a dynamic that balances the power of the collective voice with the rights of individual clients to personal representation. This usually involves the signing of paperwork waiving confidentiality for certain aspects of their representation, waiving potential conflicts among defendants, and allowing for joint representation with other attorneys who may assist.
  6. Tell them about yourself and why you practice. For example, I begin my work with a protester by thanking them for their witness. I explain a little bit of my background, and why I represent protesters without charge. Sometimes these initial consultations are one-on-one, other times they are in small groups.
  7. Listen to their stories. These protesters tell the most inspiring stories. They resonate with the history of our constitution and democracy. I often hear echoes of Rosa Parks or John Lewis as these people, young and old, explain why they were arrested for political speech.

Representing Your Clients

Plea Agreements

When it’s time to go to court, my goal is to work out a plea agreement with the prosecutor that allows for the performance of community service in exchange for a dismissal of the charges.

Most courts have some kind of diversion program for first-time offenders. These diversion programs, or “Deferred prosecution agreements,” often require payment of court cost, community service fees, and admission of guilt. In return, the prosecutor will dismiss the charges.

It’s worth trying for “deferred prosecution with no strings attached,” which allows the protestor to perform community service alone. It takes the form of a letter verifying the agreement. Often prosecutors are glad to offer this more informal deferred prosecution arrangement, especially when the number of protestors for a single event is high and potentially burdensome on the judicial system. In the Moral Monday cases, the prosecutors offered payment of court costs and community service hours. Protestors may prefer this option to avoid going to court monthly and awaiting a trial that may take a year or more to reach.

Trial Prep

For the folks who want a trial, we prepare like any other criminal trial. I ask protesters to write a journal documenting their protest and arrest, play by play. I also ask them to write a personal statement sharing why they engaged in protest. This will help them prepare their testimony months and years later, when it’s time for trial.

There may also be other resources: video tapes or news reports of the protest and notes from trained legal observers. I’ve also noticed that arresting officers are often more than happy to take me on a tour of the “crime scene” and explain what happened from their point of view.

Research

I generally prepare an appendix of relevant criminal statutes, permitting rules, permit exhibits, and First Amendment cases to provide for the prosecution and the judge at trial. The general argument is that law enforcement officers’ order to leave was unconstitutional because the people were engaged in political speech, in a public forum, and there is no compelling state interest to shut them down.

Usually the officers are exercising unfettered discretion in the application of vague and overbroad rules. Sometimes, the permitting regulation is unconstitutional on its face because it does not make exceptions for small groups.

I will use the appendix for likely every protestor who is going to trial from the same event. I pull out a block quote that I plan to discuss as a cover sheet to each case. The cases focus on constitutional doctrines involving:

  • political speech;
  • definitions of public forums;
  • the way the right to assemble amplifies freedom of speech;
  • unfettered discretion of officers; and
  • vague and overbroad rules.

In addition, when permit schemes require individuals and small groups to get a permit before they speak in public forums, they often run afoul of the small group exception to permit restrictions under the First Amendment. Older permit ordinances, schemes, and legislative rules are sometimes unconstitutionally vague and overbroad.

Trial

The trials usually begin in a lower court, where a judge is both referee and finder of fact—a bench trial. These lower courts usually handle misdemeanors and are rather informal.

It is a very different kind of trial I want to bring to their halls. I give an opening statement on the law. This is very important in a more informal court with judges who do not deal often with complex, interrelated constitutional doctrines of free speech. They want a legal road map ahead of the trial so that they can apply the facts of the case to the law during the trial and at the end. I generally avoid arguing the unconstitutionality of statutes on their face and focus on the unconstitutional way in which the rules are applied.

Early in the trial, I raise every evidentiary objection in the book to get a sense of how the judge is calling objections. Then, I only object in order to narrow the focus of the prosecutor’s inquiry, or keep out irrelevant or prejudicial material. There are often evidentiary difficulties laying the foundation for video tapes and permitting procedures. At the close of the state’s evidence, I make a motion to dismiss where I argue all the constitutional doctrines.

If I am successful, I think it is because I have reminded the judge that they are the keeper of the foundation of our democracy. As I see it, the First Amendment speaks to the court and citizens about how our society is to function freely. In my experience, once a judge feels the full weight of this obligation, he or she wants to protect free speech but would rather not rule on constitutional grounds. The judge may find a technical deficiency in the warrant or proof to allow for dismissal without ruling on the unconstitutionality of the arrest. Every now and then a judge will rule on constitutional grounds in a lower court, but not often.

I have learned from these protesters that our rights and freedoms are not like statues standing firmly on our capital grounds. Our freedom has to be reclaimed by each generation from forces that benefit from coerced silence. Watching the expansion and restriction of our right to speak and assemble is like watching the tide come and then go out. I am honored to be one of the forces pulling for freedom.

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