Can You Be Forced to Relinquish Your Rights in Order to Get Out of Jail?
In addition to federal authorities being deployed into cities and arresting protesters without probable cause or warrants and based on vague, petty offense charges, such as “disorderly conduct” and/or “failing an obey a lawful order,” (i.e. being on a sidewalk outside the federal courthouse), new reports published by ProPublica indicate that a number of these protesters are now also being forced to sign away their right to attend protests in the future within city and state limits before they can be released, which is blatantly unconstitutional and a violation of their First Amendment right to assemble. Specifically, the orders – signed by federal magistrate judges – state that these defendants – who have not yet been convicted of anything and are awaiting trial – may not attend any assemblies, protests, public gatherings, or rallies; sometimes within the entire state or city, and sometimes without any geographic specification or limitation; as a condition of release similar to other conditions, such as having to appear for their court dates. Those not specifically prohibited from attending protests are still barred from public places that are part of the public square and within five blocks of the courthouse grounds (except for court hearings). Those who spoke with the media indicated that they felt they did not have any other choice, and some were even advised by their public defender to take the conditions if they wanted to be out of jail, even though they didn’t do anything illegal upon arrest.
The government has sharply increased the number of petty offense federal criminal charges it has brought in response to the Black Lives Matter protests that have erupted over the death of George Floyd, (it can charge these as federal crimes only when protesters are technically on federal property). According to court documents reviewed, more than one-third of the protesters arrested are being charged with “failing to obey a lawful order,” which has been described as the all-encompassing category that serves as an excuse to simply arrest people for protesting. President Trump also appears to be relying on the same law that allows the Department of Homeland Security to send in law enforcement agents from Customs and Border Protection to file criminal charges against these individuals, which has never been done and is questionable in these circumstances. It appears that the criminal charges leveled against them are very much tied to their choice to protest, and not to any actual criminal acts committed.
When Can Conditions Be Set?
While Magistrates have some authority to set terms of release for those accused of crimes, they typically receive recommendations from US Pretrial Services, which includes very specific recommendations from prosecutors involved in the case, and any and all release conditions are typically related to flight or public safety. In addition, it is highly unusual for pretrial conditions to be attached to those who have not yet been convicted or indicted as opposed to those released on parole, probation, or after an indictment. Yet even then, any restriction on these rights has to be related to be very specific threat, in the interest of public safety, directly connected to the basis of prosecution, and reasonably related to a legitimate goal of pretrial release–for example, placing restrictions on an individual’s right to attend a particular demonstration because there is evidence that the individual is planning to engage in an unlawful activity at that demonstration.
If You Are Arrested Protesting, Contact The Best New York City Criminal Defense and Civil Rights Lawyer
In late July, Trump threatened to send these same federal officers to New York City, one of the Democratic-led cities he railed against, which he claims has been taken over by anarchy, crime, and violence. If you or a loved one is charged with a crime here in New York for simply exercising your civil rights, do not sign away your rights in exchange for your release. Contact experienced New York criminal defense attorney Phillip J. Murphy for a free consultation to find out how we can help ensure that your rights are protected.