|Legal Briefing for People Considering Civil Disobedience at SOA Protest|
This briefing was prepared by Christy Pardew, Bill Quigley, James Roe and Audrey Stewart. For more information feel free to contact Bill Quigley, Loyola University New Orleans School of Law. Email:
. Mail c/o Loyola Law Clinic, 7214 St. Charles Avenue, Room 118, New Orleans, LA 70118. Phone: 504-861-5591. Last revised 9-06.
This is basic legal information being provided to people so they can make informed decisions about their actions at the School of Americas - WHINSEC protest. This is not an invitation for anyone to violate federal law. This is an informational briefing provided so people can make informed decisions about the possible legal consequences of their actions.
SOA Watch encourages people to make their own decisions and not be subjected to any pressure to act in any particular way. SOA Watch does not put a higher value on the witness of people who decide on their own to engage in civil disobedience than the efforts of others who pray, educate, or lobby legislators to close the SOA/ WHINSEC. Every single person has to make their own informed decision.
People who are considering "crossing the line" should be prepared for almost certain arrest and a real possibility that they can be ordered to go to trial and go to jail for periods of up to six months and be fined up to $5,000.
Since civil disobedience protests against SOA/ WHINSEC began over a decade ago, more than 260 people have been found guilty in federal court of civil disobedience. More than 200 people served or are now serving federal prison sentences. Several dozen other great people were sentenced to and some are now serving, terms of federal probation.
What does it mean to cross the line?
Outside the gates of Fort Benning, there is a line painted on the street. That line is where the U.S. Army says that the property of the city of Columbus, Georgia stops and the property of the U.S. Army military reservation of Fort Benning starts.
The U.S. Army takes the position that crossing the line is a violation of the federal law of trespassing onto a military reservation in violation of 18 USC 1382. The federal crime of trespass on a military reservation is a petty misdemeanor punishable by imprisonment of up to six months in jail and/or a fine of up to $5,000.
SOA Watch has engaged in nonviolent protests at the gates to Fort Benning each year since the early 1990s. In most years, some people have engaged in nonviolent civil disobedience by crossing the line between Fort Benning and Columbus, Georgia in a solemn funeral procession.
In 2001, the Army put up a fence around Fort Benning. Since that time, some people engaged in civil disobedience by going around, under and over that fence.
Crossing the line means going onto the property of Fort Benning in an act of nonviolent civil disobedience as part of the SOA Watch protest.
What will happen to me if I cross the fence line?
It is very difficult to predict exactly what will happen in the future, but we do know what has happened in prior years.
Over the past several years, all of those who have crossed around, over or under the fence onto the property of Fort Benning have been arrested on the federal charge of trespass. Each was searched and handcuffed on the spot. The arrested people were then transported to a facility on the base where they were processed by being identified, fingerprinted, photographed, and issued individual ban and bar letters. The arrested people were then sent to the Muscogee County Jail in Columbus where they were held overnight at least one day and in some cases two days before they were given an initial appearance and bond hearing before a U.S. magistrate judge. In recent years everyone had to post cash bonds of $1,000 in order to be released from jail. In some years, people chose not to post bond and stayed in the Muscogee County Jail until their trials after the first of the year.
After posting cash bonds, the arrested people were set free to return to their homes until their trials which are held on dates chosen by the federal judge. These dates have been as early as January and as late as July. People are then required to return to Columbus for their trials. For the past several years everyone who actually crossed the fence onto Fort Benning in an act of civil disobedience was found guilty by the federal judge. The judge has given out mostly jail sentences of three to six months in federal prison. Some people have been sentenced to federal probation for a year and ordered to do hundreds of hours of community service. Most people have also been fined in amounts ranging from $500 to $5,000.
In previous years, when there was no fence, larger numbers of people engaged in civil disobedience and crossed the line, once nearly 4,000. While it is true that in some previous years, when there was no fence, people were merely transported off the military property and released without any formal proceedings at all, there is no reason to think that will occur again.
What is a "ban and bar" letter?
A "ban and bar" letter is an official notice from the military commander prohibiting a person from coming back onto the base for a period of years, often five years, and in some cases, permanently. The ban and bar letter states that the person named has been apprehended for violating the federal criminal law of trespass onto a military reservation and orders them not to return. Everyone who crosses the line should expect to receive a ban and bar letter.
Will I be arrested if I cross the fence line?
The short answer is yes, we think so. The military will detain, handcuff, search, identify, fingerprint, and photograph every person that crosses the line. Each will be issued a ban and bar letter. This is an arrest.
What will happen if I physically assist someone to cross the fence line?
If you physically assist someone to cross the line, you may also be arrested, charged with "aiding and abetting", and required to return for trial. In 2005, one person simply held a portion of the fence and thereby ?assisted? the person who crawled underneath the fence. He was arrested, charged with aiding and abetting, convicted and sentenced to federal prison.
If I am arrested will I have to post a $1,000 cash bond to get out of jail?
Yes. In 2003 the U.S. Magistrate routinely forces every single person arrested to put up $1,000 in cash as bond before being released from the Muscogee County Jail. Requiring cash bonds has happened in the last several years. It is possible that the judge could even require bonds higher than $1000.
Requiring such bonds is very unusual in a criminal case where people are not a threat to the community or a flight risk. This appears to be punitive and contrary to the federal rules for bonds, but that is what the judge continues to do over our objections. You should expect and be prepared to post a cash bond. Bonds are returned after trial, but the government holds on to bond money for a long time. In the last several years affinity groups, families, schools, and friends pitched in to raise money for arrested individuals once the judge ordered the money be posted. You should make plans for raising bond money before taking this action. If you are arrested and cannot post bail, the community will help you.
What are the chances that I will have to go to trial if I cross the fence line?
Nearly 100%. Nearly everyone who has intentionally crossed the line in recent years has been required to go to trial. The only way to avoid trial after arrest is to plead guilty at the arraignment.
Don't first-time crossers get one free chance before being formally charged?
No. This is a very important point. The government has prosecuted and jailed dozens of people who were first-time crossers. In the more distant past, sometimes the government only brought people to trial if they were repeat crossers and already had ban and bar letters, but that is no longer the case. At this point, every person who crosses the fence line, whether it is the first time or not, should be prepared to be arrested and face the very real possibility of trial.
What are the legal consequences of crossing the fence line?
You should expect at a minimum to be arrested and held overnight until you post bond. You should also expect to be issued a ban and bar letter. If you are tried and found guilty of trespass you can face imprisonment for up to six months per charge and fines of up to $5,000. If convicted, your conviction for a federal misdemeanor will be a matter of public record.
Will I have to report to schools and employers that I have been arrested if I cross the line?
Yes, if you are asked, you must tell the truth. If asked you should advise that you were arrested for the petty offense (misdemeanor) of federal criminal trespass on a military reservation in connection with an act of nonviolent civil disobedience.
What are the consequences if I am prosecuted and found guilty?
People who are prosecuted have to return to federal court in Columbus at least once for their trial and possibly at other times for their arraignment or sentencing. People who are prosecuted face federal probation, imprisonment, and/or fines of up to $5,000.
People who are convicted should expect to have to explain their conviction on employment, schooling and professional applications. Some people who were convicted have had job problems.
Does it make a difference if I am not a citizen?
Yes. Non-citizens will likely face more legal difficulties than citizens who engaged in civil disobedience. Non-citizens face both immigration problems and criminal problems if they engage in civil disobedience. It is strongly suggested that non-citizens consult with an attorney before taking such a step.
What about people who are under 18?
People under the age of 18 who cross the line should expect to go through the legal process much like adults. Recent experiences of people under 18 are that they are arrested just like everyone else. They are photographed and fingerprinted just like everyone else. Most have been released without going into the Muscogee County Jail with the rest of the people arrested. However, people under 18 should be ready for the possibility that they will have to post bond and remain in jail like everyone else.
People under 18 have been required to return to Georgia for trial like everyone else. Criminal trials for people under 18 are held in private and a parent or guardian is expected to attend. In the past, people under 18 who were arrested who did not have a juvenile criminal record were given the equivalent of six months of probation and required to perform considerable free community service but a jail term is a possibility.
What are the consequences of going to jail for student grants?
A misdemeanor conviction for federal trespass will not stop you from receiving a Pell Grant. People who are convicted of crimes and sentenced to prison often have federal benefits taken away from them while they are in jail. For example, people in jail or prison cannot receive Pell Grants while they are in jail (20411 of 1994 Violent Crime Control and Law Enforcement Act). Pell Grants are not allowed to be awarded to people who have criminal convictions for drug offenses but a misdemeanor trespass conviction has not been a problem.
What are the consequences of going to jail for social security?
Social security does not pay benefits to people who are convicted and incarcerated. Social security benefits are suspended for the entire month if one is incarcerated for any portion of that month. For example, if you are sentenced to a three month sentence you will usually lose benefits for four months. This applies to both social security retirement benefits and to social security disability benefits. If you are convicted but receive no prison time, you would keep receiving social security benefits. If in jail or prison, the benefits would be suspended while inside and re-started once released. If you are fined upon conviction and refuse to pay the fine, future social security benefits could be offset in collection of the fine.
How do I get legal assistance if I am arrested?
If you are arrested you have the right to be represented by an attorney or to represent yourself. The SOA Watch legal collective will provide you an attorney for free if you want. You are also free to hire an attorney of your choice to represent you. You may also choose to represent yourself. You can ask for an attorney to be appointed for you if you are indigent.
What is the actual criminal statute involved in these cases?
It is 18 United States Code Section 1382 which states: "Whoever, within the jurisdiction of the United States, goes upon any military, naval, or Coast Guard reservation, post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation; or Whoever reenters or is found within any such reservation, post, fort, arsenal, yard, station, or installation, after having been removed there from or ordered not to reenter by any officer or person in command or charge thereof - Shall be fined under this title or imprisoned not more than six months, or both."
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