Crime, Free Speech, Police

How To Counter-Protest Safely And What To Do If You're Arrested

If you are unfortunate enough to be arrested bear these points in mind...

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(Photo by Stephanie Keith/Getty Images)

Going to a demonstration, even as a counter-protester, carries risks (as we’ve seen), not only from opposing protesters but also from police.

Should a melee break out, police aren’t interested in the subtleties of who started it or who was just acting in self-defense. (This gets straightened out later.)  Their primary goal is to quell violence and ensure safety. They’ll make arrests first and ask questions later.

My daughter (a college senior at McGill in Montreal) recently told me that she was going to a skinhead demonstration in Quebec as a counter-protester.  I was concerned because of recent events in Charlottesville, so to calm my worries she said, “Don’t worry, I’m bringing Mace.”

I don’t know if Mace is even legal to carry in Canada. It is in New York, but only if purchased from a legitimate weapons distributer or pharmacy. To buy it, you also have to be over 18 with no felony or assault history, and you can use it only in self-defense.

Many things that are legal to carry can still be categorized as weapons if not used in self-defense.  The definition of “weapon” is vast.  Guns, knives, and nunchuks are per se weapons. If you’re found carrying one of these items, you can be charged automatically with weapons possession. But even a cup of coffee can be deemed a weapon if thrown while steaming hot at someone’s face.  Or a sidewalk curb can be a weapon if someone’s head is being bashed into it.  Anything, really, can be a weapon.  It all depends on how it’s used, not what it’s normally used for.

Carrying certain weapons is legal in some states, but not in others.  This varies from state to state and city to city in some cases.  Furthermore, even if you’re legally carrying something that can be considered a weapon, like Mace, you do not have the right to use it except in defense of yourself.  To make this even more clear, you cannot spray Mace at someone just because they’re cursing you out or extolling the virtues of skinhead fanaticism.  However, if such a person cranks up his arm readying to punch you in the face, you have every right to spray the Mace.  So Rule 1:  You can only use a weapon in self-defense, and then your use of any weapon must be no greater than the weapon used against you.  For example, if someone’s coming at you with a stapler, you can’t pull out an assault rifle and shoot him.  There’s also a duty to retreat in most urban areas if you can get away safely.

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Next, being justified in using a weapon doesn’t guarantee you won’t be arrested for it.  If a fight breaks out at a demonstration, you could easily be arrested just because you’re there.

The primary rule if you’re being arrested is — be pacific.  Go totally limp, slide to the ground, sit down and say nothing, or just stand still.  But DO NOT argue or actively resist the police.  This could get you in significantly worse trouble.  First, they could beat you in efforts to slap on the handcuffs; next, you’ll be charged with resisting arrest.  Worse, if in struggling against the police a cop injures himself, even minimally (a twisted finger, a bloodied nose), you could be indicted for felony assault.  (Any injury to a cop, no matter how minor or unintended, brings a felony charge.)

So if while at a demonstration you see the cops coming and they’re moving in aggressively to arrest anyone and everyone, either move away long before they reach you, or do not resist.

If you are unfortunate enough to be arrested, bear these points in mind:

1) Do not waive your Miranda rights and speak to police.  Save that for your lawyer.  Anything you say can and WILL be used against you.  Remember, police have a right to lie to you to encourage you to speak to them.  Don’t be fooled by their promises.

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2) Make sure you’ve memorized needed numbers from your cell phone.  Police will seize your phone and may or may not let you make that mythical one phone call at the precinct. (Depends how nice that cop is; how busy they are; and how nice you’ve been to them.)

This brings up the issue of any video you may have taken prior to your arrest.  If it looks like you’re going to be arrested (you see the cops arresting people randomly, or coming straight for you), give your cell phone to the nearest person (hopefully someone you know) who is not going to be arrested.  (The 79-year-old lady in the Peace t-shirt.)  They’ll be able to find you at some point later and you will have preserved the video that hopefully will show you did nothing wrong, or did whatever you did in self-defense only.

3) Once arrested, you’ll be fingerprinted and photographed (mug shot) and either put through the system (made to stay in jail till you see a judge) or given a summons to appear on another date.  You should be able to have the property seized at your arrest returned to you, but again, this varies precinct to precinct and prosecutor to prosecutor.  Best idea is to hand off any important property — keys, phone, Mace, etc. — to a designated friend before you’re arrested.  Dealing with the bureaucracy of trying to get your property back afterward is a giant hassle. (You’ll want, however, to hold on to at least one piece of ID.)

Counter-protesting is important.  But since you don’t know what anyone around you may do, there’s always a risk of being arrested. Hand off your property, and ride out any arrest without resisting or speaking to police.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

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