Know Your Rights Your Remedies Aaron Marr Page

Know Your Rights … & Your Remedies Aaron Marr Page June 12, 2020

Know Your Rights First Amendment – • Speech, assembly, association Fourth Amendment – • Searches, Privacy Fifth Amendment – • Self-incrimination, due process Google: ACLU know your rights protests See resource sheet, learn the foundations UI CENTER FOR HUMAN RIGHTS

First Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Time Place & Manner Exceptions On The Street UI CENTER FOR HUMAN RIGHTS

Time Place & Manner Content Neutral Reasonable Public safety, “flow of traffic” Officer safety UI CENTER FOR HUMAN RIGHTS

Public Forum Traditional Public • Sidewalks, parks, some areas of gov’t buildings Limited / Designated Public • Some areas of gov’t & public university buildings Private Property • Will of the owner Buffer / “Free Speech Zones” UI CENTER FOR HUMAN RIGHTS

Expressive Conduct “An intent to convey a particularized message [in] circumstances [where] likelihood was great the message would be understood by those who viewed it. ” Examples: draft cards (O’Brien); flag-burning (Johnson); public nudity (Tagami, Barnes); apparel • O’Brien: “a) within the government’s constitutional power, b) furthered a substantial government interest, c) not related to suppressing free expression, and d) did not restrict First Amendment freedoms more than was necessary to promote the government’s interest. ” “regulating conduct” versus “suppressing speech” UI CENTER FOR HUMAN RIGHTS

Exceptions Clear & present danger • Brandenburg v. Ohio: speech “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” Fighting words • Abusive language, exchanged face to face, which would likely provoke a violent reaction • Hate speech Defamation • Public figure • Known falsity UI CENTER FOR HUMAN RIGHTS

On The Street Civil disobedience | Collateral Bar “Lawful order” • Iowa Code § 321. 229 Obedience to peace officers: No person shall willfully fail or refuse to comply with any lawful order or direction of any peace officer invested by law with authority to direct, control, or regulate traffic. Tone, movement, interaction w bystanders Filming the Police Stay in groups, be aware/gather evidence, write it down! Personal safety & consequences UI CENTER FOR HUMAN RIGHTS

Fourth Amendment The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Seizure Search “Magic Words” UI CENTER FOR HUMAN RIGHTS

Seizure | Custody Conversation-Investigation • Free to leave! • No required ID • Undercover infiltration. No obligation re truth! Investigation-Detention • Terry stop: Reasonable articulable suspicion • More than a “mere hunch” • ID = name, address, date of birth • Police ID Detention-Arrest • Probable cause • Fifth Amendment, Miranda UI CENTER FOR HUMAN RIGHTS

Search Expectation of privacy • Phones protected! Riley v. California Warrants Consent • Silence = consent! Officer Safety • Pat downs and “wingspan” searches Hot pursuit Plain view Exclusionary rule, “fruit of the poisonous tree” UI CENTER FOR HUMAN RIGHTS

On The Street Lawful order Hands, movement, tone of voice Resisting arrest / passive resistance Stay in groups, be aware/gather evidence, write it down! Personal safety & consequences UI CENTER FOR HUMAN RIGHTS

Fifth Amendment nor shall [any person] be compelled in any criminal case to be a witness against himself nor be deprived of life, liberty, or property, without due process of law Right to remain silent • Initiation & reinitiation Right to an attorney - reasonable number of phone calls Compelled communicative act • “Right against self-incrimination” DNA, fingerprints, blood test, exemplars… • Breathalyzers, non-testimonial field sobriety tests Passcodes versus biometrics? UI CENTER FOR HUMAN RIGHTS

Magic Words “I do not consent to any search” “Am I being detained? ” / “Am I free to go? ” “What is your reasonable suspicion to stop me? ” “What is your lawful basis for this order? ” “I wish to remain silent” “What is your probable cause for this arrest? ” UI CENTER FOR HUMAN RIGHTS

Charges State: Disorderly conduct, unlawful assembly, destruction of property, trespass, criminal mischief, resisting arrest, obstruction of justice, false information, more… “Obstruction of law enforcement during a civil disorder, ” false statements, federal drug possession & trafficking (marijuana sched. I), unauthorized access to computer system, more… Terrorism • An act "dangerous to human life" that is a violation of the criminal laws of a state or the United States, if the act appears to be intended to: (i) intimidate or coerce a civilian population; (ii) influence the policy of a government by intimidation or coercion • Investigation / seizure of assets UI CENTER FOR HUMAN RIGHTS

Section 1983 Every person who, under color of [state law] subjects, or causes to be subjected, any citizen of the United States or other person to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable. . . History (Civil Rights Act of 1871) Color of law Constitutional rights / federal law (enforceability) UI CENTER FOR HUMAN RIGHTS

Section 1983 Excessive force • Graham v. Conner: Force must be proportional to the threat posed by the subject. False arrest, 1 st Amd retaliation, due process, lots more! Enforceability re federal law Municipal liability (Monell) – “policies, customs or practices” Intentional/negligence Qualified Immunity Pleas and Heck v Humphrey Compensatory, punitive, nominal damages Attorney fee-shifting UI CENTER FOR HUMAN RIGHTS

Remedies Broadly Damages Injunctions • Conduct • Policies, practices, record-keeping, etc. Consent decrees Constitutional law development Legislative improvements Civil society monitoring and capacity UI CENTER FOR HUMAN RIGHTS

Resources Protestor Rights: • ACLU, • Website: https: //www. aclu. org/know-your-rights/protesters-rights/ • PDF: https: //www. aclu. org/sites/default/files/field_pdf_file/kyr_protests. pdf • ACLU-Iowa, https: //www. aclu-ia. org/en/protest • Protest Law Tracker, https: //www. icnl. org/usprotestlawtracker/ Section 1983: • Quick overview: https: //www. huffpost. com/entry/a-legal-overview-of-section-1983 -civilrights-litigation_b_58 f 0 e 17 ee 4 b 048372700 d 793 • Case law overview: http: //www. hcbattorneys. com/wpcontent/uploads/2017/02/Fundamentals-of-Section-1983 -Litigation-11. 22. 16. pdf Human Rights Framework: • Inter-American Commission Hearing on Police Killings and Accountability (with links to amicus), https: //www. aclu. org/cases/human-rights-hearing-police-killings-us • Laura Goolsby, Why International Law Should Matter to Black Lives Matter: A Draft Petition to the Inter-American Commission on Human Rights on Behalf of the Family of Eric Garner, https: //scholarship. law. upenn. edu/jlasc/vol 21/iss 1/3/ UI CENTER FOR HUMAN RIGHTS

Resources Advocacy Organizations • ACLU-Iowa, https: //www. aclu-ia. org/ • Partnership for Civil Justice, http: //www. justiceonline. org/ • Civil Liberties Defense Center, https: //cldc. org/ • Institute for Free Speech, https: //www. ifs. org/ • Electronic Frontier Foundation, https: //www. eff. org/ • Article 19, https: //www. article 19. org/ (UDHR) Lawyers • Iowa Legal Aid, http: //www. iowalegalaid. org/ • ISBA Find-A-Lawyer Service, www. iowafindalawyer. com • Rockne Cole (Iowa City), Cole Law Firm, rockne@colelawfirmiowa. com • Tom Frerichs (Waterloo), Frerichs Law Office, tfrerichs@frerichslaw. com • Phil Mears (Iowa City), Mears Law Office, mearslaw@mearslawoffice. com • Aaron Page (Iowa City), Clark Grove PLLC, aaron@ampjustice. com UI CENTER FOR HUMAN RIGHTS