p2 - What are your rights as a protestor? - a podcast by Defense Lawyer / Fmr NJ Prosecutor - Meg Hoerner
from 2020-06-19T03:00
MEG NOTES
What rights do you have when you’re protesting??
If police aren’t accountable, how can you protect yourself from criminal charges or worse yet – physical harm?
1.Can you protest?
Absolutely
2.Where can you protest?
Public (Streets, Sidewalks, Parks)
If on private property could be charged with trespass
Can’t block vehicle or pedestrian traffic
3. Can you use cell phone / other device to record?
Public property – YES - Can photograph / video
Police can’t seize and/or search cell phones without a warrant
Use care - Audio – Wiretap laws (NJ – only record audio if party to conversation)
4. Can police interact with the public?:
-A. Police have a duty to protect the Constitutional rights of individuals
a. 1st Amendment right - Peaceably assemble
-B. Field Inquiry: Police always have the right to approach someone and ask then if they would be willing to answer questions with zero level of suspicion
a. Individual under no obligation to answer questions
-C. Stop / Investigative Detention: RAS person has committed a crime (ex. marijuana smell)
a. No right to Miranda
b. Pat down for safety if RAS armed and dangerous (example don’t remove hands from pockets / furtive movement and then lie about it) (not a search)
i. PC for weapon / contraband (search)
-D. Arrest: Probable Cause
a. Search Incident to Arrest
5. What if you are stopped and/or that stop escalates to an arrest?
Am I free to leave?
Don’t argue
Don’t resist
If under arrest:
Ask why
Don’t argue
Don’t resist- even if you believe arrest is unlawful!! (Obstruction)
Remain silent
Ask for a lawyer
Don’t consent to any searches or anything
-If you feel rights are being violated – take note of officer name / badge number
-not all officers wear BWCs / have MVRs
6. What DOESN’T the First Amendment protect:
Trespass on private property
Disorderly conduct
Hindering apprehension /OBSTRUCTION
Excessive noise
Looting
Violence
Resisting arrest
Assault on officers
7. When can police use force?
Officers trained on de-escalating situations and using least amount of force
Oftentimes this doesn’t happen and force escalates
Use of force continuum:
Constructive Authority (ex. Issues commands)
Physical contact (ex. Hand on arm)
Physical force (ex. Wrestling suspect to the ground)
Mechanical force (ex. Use of baton, canine, chemical spray)
Lethal – to protect officer or another from death or serious bodily harm
Conclusion: Important to know and assert your Constitutional Rights – oftentimes as important, if not more important, to know the Limitations on those Rights to protect yourself from criminal charges and worse yet - physical harm
Further episodes of NJ Criminal Podcast
Further podcasts by Defense Lawyer / Fmr NJ Prosecutor - Meg Hoerner