On Protest Signs

Some thoughts on petitioning the government for redress of grievances.

My usual caveat: I am not an expert in immigration law or crowd control law or anything like that. I’m just looking at statutes and seeing what they say.

Ok, so I’m a (retired) lawyer and that means making distinctions is bred in me to the very bone. You may think what I am about to say is a distinction without a difference, but the terms of protest have, well, changed. Dozens if not hundreds of protestors are being arrested in LA and probably in the follow up protests. And who knows what will go down on Saturday, No Kings Day. Think about what the GROUNDS for those arrests are.

I’m not talking acts of actual violence, even the mere throwing of a bottle.¹ The charge that is being dragged out of the woodwork is found at the very least in the likely excuse for invoking the Insurrection Act:

10 US Code Section 252

The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—

(1)so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or

(2)opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

Some law like Paragraph 2 is what is going to get thrown at you if you are arrested at a protest. So how does this comport with the First Amendment?

Up till now, we have all assumed that a peaceful protest is OK whether or not one opposes the execution of some law. Norms have left the building, however.

So imagine that you want to block an ICE van at a round-up. Imagine two variations of the sign you are carrying—

• "ABOLISH ICE”

  There you are sitting in front of a van or ICE agent. Like it or not, ICE is constituted under the laws of the United States. Watch DOJ argue that you are simply obstructing the execution of those laws. They might have a chance, in this climate.

  OR

• “MAKE ICE ACT LEGALLY” There is in fact no “law” of the US that allows ICE to act illegally. If what you are doing is objecting to the LEGALITY of its operations, you aren’t obstructing a law nor impeding the course of justice. Watch your defense lawyer get his pen in gear. You have a grievance: ICE isn’t following the laws governing it. You are flat out petitioning for redress of that grievance.

We would all prefer ICE be doing an FBI-like job of finding and deporting criminals, giving them due process IN the process. But at the urging of Voldemort Miller, that’s not what they are doing in many instances. They are often not identifying themselves. They have been reported grabbing people just walking down the street (I haven’t seen a verified case of this, btw). They are not showing warrants, so there is no way to know whether they even have one. ² Does anyone know whether they are reading Miranda rights?

Remember that warrants are for each person arrested. There’s no such thing as far as I know as a warrant to arrest anyone suspicious looking in a parking lot. Or arresting anyone simply in the vicinity of the person ICE does have a warrant for, so long as they stay quiet. With THIS sign, when they tell you to move, just ask to see the warrants they are executing on and leave if they do so, after pointing out who they are after. Sit down again if they go after someone else. ³

ICE COULD act legally. It could get warrants, execute them properly, give the detained a chance to let family know what’s happening, and keep them in the jurisdiction long enough to allow a writ of habeas corpus to be filed. But that all takes time. Lots of time, lots of man power, lots of people signing individual warrants. And trumpMiller doesn’t WANT to take time. They want a splash and quotas and numbers—above all, they want FEAR

That means not following the rules. And THAT is a grievance you are clearly entitled to protest. ⁴

I’m also pretty sure that unless you are Terry Moran your sign can also call people names. So before “Make ICE obey the law” you can put TACO or Voldemort or Cluck Cluck or whatever you want.

1. I’m not sure whether throwing a tear gas cannister BACK at the cops is an act of violence; feels like self defense to me

2. I am here talking warrants for the immigrants. Remember that in PRIVATE areas like a workspace or home, the warrants have to be judicial. In public parts of private property or in generally public areas, they may be administrative (signed by an authorized someone other than an Article III judge.) There IS such a thing as a warrantless arrest but there STILL has to be probable cause, like being in the process of committing a crime or fleeing after admitting to being undocumented. (The first is the reason they’ll be arresting YOU, the protestor—”obstruction.”) Standing in a parking lot is not a crime. Nor is refusing to produce ID without that signed piece of paper. As to the flight thing, I don’t think just fleeing from someone tromping down the street in full body armor with a gun is probable cause to think they are undocumented.

3. I’m not sure if a properly signed deportation order after proper hearing can work as a warrant. Clearly it has the same indicia as a warrant, but stronger—there is probable cause and you’ve had your due process. By properly signed I don’t mean something ICE has told an immigration judge they HAVE to issue even if the judge hasn’t finished his decision after looking at the facts. It looks like ICE is in fact doing that with the “dismissals” and arrests after someone properly shows up for a hearing. One judge actually said “well, we all have bosses.”

4. I don’t know the law about when an order to disperse is legitimate. I’d say actual violence would be a legitimate reasons, or being somewhere like a freeway where there may be laws against gathering. I don’t think that just blocking traffic on a normal street counts, but I don’t really know. And I don’t know if ICE itself can issue one. If there is an actual order to disperse from your local law authority, I’d say do it: live to fight another day.