Monday, December 13, 2010

Know Your Rights


It is very important that you understand why an officer is stopping someone and what their rights are when they are stopped. Determine exactly what kind of stop the officer is making.

Consensual Stop
This is when the cop approaches and begins talking to you. The cop may even ask to see your ID. You don’t have to show it. Ask the cop “Am I free to go?” or “Am I being detained?” You don’t have to talk to the cop or even remain in the area unless the cop says “No, you can’t go” and has a reasonable suspicion to detain you. However, the cop doesn’t have to tell you why you are being detained.

The police are allowed to detain you if they have a “reasonable suspicion” to believe that you have committed or are about to commit a crime. The officer must have some reason for stopping you. They can’t just say that you don’t look like you live in the neighborhood or that they “had a hunch”. The detention should be limited in its purpose and scope. They can conduct a pat search of the outside of your clothing in order to check for weapons, but you DO NOT HAVE TO CONSENT TO A SEARCH of your pockets or bags. You do not have to answer any questions except to identify yourself and give your address.

This means that you are in police custody and you are being charged with a crime. You will be thoroughly searched as part of the booking process. You have a right to know why you are being arrested. Penal Code section 841 says that “The person making the arrest must, on the request of the person he or she is arresting, inform the latter of the offense for which he or she is being arrested”. Even though police often won’t tell you, you have the right to remain silent and the right to a lawyer. Don’t give up these rights.

These are minor offenses such as jaywalking, illegal parking, open container of alcohol in public, being in certain parks after curfew, being a minor in possession of spray paint or large marking pens, etc. When an officer sees this kind of activity, s/he can ask to see ID. If you have ID and you do not have any outstanding warrants, the cop should just write you a ticket and be done with it. If you don’t have ID on you, the cop HAS THE OPTION OF TAKING YOU TO THE STATION TO VERIFY YOUR IDENTITY OR SIMPLY WRITING YOU A TICKET AND LETTING YOU GO. This is up to the officer. You aren’t supposed to have to go to jail for in- fractions in and of themselves. You would not expect to be searched during this kind of stop.

These are crimes punishable by up to a year in jail such as shoplifting, trespassing, resisting, delaying or interfering with an officer in the course of his/her duty. Expect that you will be searched, arrested and taken to jail until you are arraigned, bailed out or released on your own recognizance. There are certain misdemeanors where the officer has the discretion to write you a citation or to take you into custody. Remember-don’t talk to the officer about your case and do not discuss it with folks you meet in jail. Sometimes people in jail can be used to get information about your case (informants).

These are major crimes punishable by a year or more in prison. Murder, rape, robbery and many drug related crimes are considered to be felonies. Expect that you will be searched thoroughly and will be in custody at least until you are taken before a judge and allowed to enter a plea (this is arraignment).

Answering Questions
Legally, when a person is arrested or detained by a police officer, he or she does not have to answer any questions to the officer other than to provide a name and address. You have the right to remain silent, but DO NOT lie to a cop. That is a crime.

Resisting or Obstructing an Officer
Penal Code Section 148.a states that “every person who willfully resists, delays, or obstructs (any police officer) in the discharge or attempt to discharge” of his or her duty, is punishable by fine or imprisonment. The police will often threaten COPWATCHers with this charge, but remember you do have the right to observe as long as you are not attempting to interfere with the officer.

Use of Force to Effect Arrest
Section 835.a of the Penal Code explains that the only “legal” use of force by an officer is that used in order to attain an arrest. “Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest, to prevent escape or to overcome resistance.”

Assault by an Officer
Police brutality is defined in the Penal Code as, “Police breaches of due process guaranteed by the physical abuse of citizens without legitimate cause.” Section 149 of the Penal Code makes it illegal for a cop to assault or beat any person “without lawful necessity.”

Police Search Powers
Police may detain someone if they have “reasonable suspicion” that specific facts connect that person to a specific crime. In this case, the cops can also pat someone down to feel for a weapon, and if they feel something that feels like a weapon, they can go into that person’s clothing to look for it. Otherwise the cops can only search someone’s pockets, back pack, or belongings if that person:
• Has been arrested for a specific crime,
• Has a search clause as a condition of probation, or
• Gives the police permission, which nobody is obliged to do.

Police Seizure Powers
Police may not confiscate someone’s belongings unless they are illegal or that person has been arrested for a crime. If possessions are confiscated, the California Penal Code entitles the owner to a receipt (1535) and a return of the possessions after the resolution of the case (1537). Any evidence obtained through the seizure may be suppressed from being used in court if the seizure was illegal. (1538.5)

Gang Profiling
Sometimes cops use petty laws to stop people in order to take their pictures. These photos are often used to create files on people and to portray people as “gang members”. Detaining people to take photos merely because they are suspected gang members is impermissible. (People vs. Rodriguez (1993) 21 Cal.App.4th 232.)

It is important in these cases that your response is loud enough for the video camera to pick up so it can be used as evidence.

1. They refuse to give you their name and badge number
Reply: California State Penal Code Section 830.10 states that all employed peace officers in the jurisdiction of the State of California must give proper identification by either their name or badge number to any California citizen inquiring.
Reference: 830.10. Any uniformed peace officer shall wear a badge, nameplate, or other device which bears clearly on its face the identification number or name of the officer.

2. They question your right to observe
Reply: Our right to watch from a reasonable distance and record your activity as a public officer is protected under the U.S. Constitution and federal law under the citizen’s right to “freedom of assembly”.

3. “You’re resisting arrest.”
Reply: No, we’re not. No one here is using or threatening to use physical force against any officer here, nor are we creating any substantial risk of causing you physical injury.
Reference: 835a. Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest, to prevent escape or to overcome resistance.

4. “This is an unlawful assembly.”
Reply: No, it’s not. We are not starting a riot. We are not recklessly using physical force or violence or threatening to use force or violence.
Reference: 407. Whenever two or more persons assemble together to do an unlawful act, or do a lawful act in a violent, boisterous, or tumultuous manner, such assembly is an unlawful assembly.
Note: According to CA Penal Code Section 726 and 727, officers must give a warning to “disperse” before actually arresting people who are “unlawfully assembled.”
726. Where any number of persons, whether armed or not, are unlawfully or riotously assembled, the sheriff of the county and his or her deputies, the officials governing the town or city, or any of them, must go among the persons assembled, or as near to them as possible, and command them, in the name of the people of the state, immediately to disperse.

5. “You’re committing disorderly conduct.”
Reply: No, we’re not. We are not refusing any order to disperse. We are stepping away as you requested, we’re not in your way, and we’re not obstructing public safety. We are standing a safe distance away.

6. “You’re obstructing a public thoroughfare (street, sidewalk, etc).”
Reply: No, we’re not. We are not willfully and maliciously obstructing the free movement of any person on any street, sidewalk, or other public place. We are not creating a public hazard or an inconvenience. We are performing a public service.
Reference: 647c. Every person who willfully and maliciously obstructs the free movement of any person on any street, sidewalk, or other public place or on or in any place open to the public is guilty of a misdemeanor. Nothing in this section affects the power of a county or a city to regulate conduct upon a street, sidewalk, or other public place or on or in a place open to the public.

7. “You’re interfering with a police officer.”
Reply: No, we’re not. We are not obstructing, resisting, or delaying you. We are not threatening any officer’s safety. All we are doing is legally observing you and recording your actions.
Reference: 148. (a) (1) Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.

If you are arrested, the police must tell you why you are being arrested. You will want to get the badge number of the officer who is arresting you and remember- you have the right to remain silent. Don’t talk about your case to anyone except your lawyer- there are lots of video cameras and informants in jail! The court must provide you with a lawyer if you can’t afford one. You have the right to speak to a lawyer before arraignment. If you are arrested, you will be searched with or without your permission. As soon as possible, and in no case later than three hours after booking, you have the right to three phone calls: to a friend or relative, to a lawyer and to a bail bondsman.

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