Crossing the Line
Engaging in Peaceable, Non-violent Direct Action

by TOM BREJCHA
president, The Thomas Moore Society

There are many ways by which Christians may register their non-violent public protest against a new war with Iraq in fulfillment of their Pledge of Resistance. Most forms of non-violent protest are fully lawful. Indeed, they constitute an exercise of fundamental rights guaranteed under the First Amendment to the U.S. Constitution and also under comparable provisions in state constitutions. Such forms of protest include, among others, organizing and participating in peaceful, non-violent hand-billing, leafleting, soliciting, picketing, assembling, and parading (with proper permits, when lawfully required); displaying signs, banners and effigies; and conducting public speeches, debates, speak-outs, and the like. It bears repeating that the pen is mightier than the sword, that words have consequences, and that "Truth Speaks To Power." When citizens band together to speak out for human rights and against the scourge of war, they will be heard. Mounting a vast mobilization that turns out multitudes of souls and convenes a chorus of voices crying out for peace and justice will bulk large now, as before, in the councils of our nation.

But many people of Faith as well as others believe that, as a matter of deep personal conviction, the horrible evils of war loom so large and so dangerously near as to demand their "crossing the line" to engage in what Dr. King called "peaceable, non-violent direct action." That is to say, they would engage in solemn, self-sacrificial acts of conscientious, peaceful civil disobedience. These peacemakers believe that, unless they should prove willing to risk the indignity of arrest and suffer whatever sanctions may be meted out against them, their protest will not measure up to the evil they oppose. With Frs. Dan Berrigan and John Dear, they would deem such civil disobedience in service of God's law a "sacrament." And as Dr. King preached almost forty years ago, they too would proclaim now that "one who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty," and that "an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the law" ("Letter From The Birmingham Jail," April 16, 1963, Why We Can't Wait, Mentor Books, pp. 83-4, 1963). And further, that "[n]onviolent action...was the way to supplement - not replace - the process of change through legal recourse...the way to divest [oneself] of passivity without arraying [oneself] in vindictive force" ("The Sword That Heals," Id., p. 36, 1963). The "force" that animates peaceful civil disobedience, what Gandhi called satyagraha, is neither violent nor vindictive, but rather "soul-force" or "truth force" (M.K. Gandhi, "Non-Violent Resistance," sec. 1, What Satyagraha Is, Schoken Books, N.Y., 1951).

Yet, we must counsel grave caution and add this pointed caveat to all those who might now consider "crossing the line" to engage in peaceable civil disobedience to express their opposition to war. While the high-pressure fire hoses and police dogs that Birmingham's police chief, Bull Connor, unleashed on peaceful civil rights demonstrators over a generation ago may seem a bygone image of days long past, there remain a number of serious consequences that participants in civil disobedience may have to face, which all potential protesters should weigh very carefully.

First, there are purely practical considerations. All protest participants should sign or renew their pledge of non-violence. Marshals should be appointed to keep order and participants should be instructed to obey them. The group should appoint a specific persons or persons as media representative(s), to assure that the non-violent approach and message of the protesters are clearly and succinctly communicated (radio and broadcast journalists especially require tersely worded "sound bite" comments); dwelling on side issues, such as difficulties with police, may divert media focus from the protesters' peaceable methods and message to the "more newsworthy" conflict with authorities. There should be no yelling or calling out, and the singing of hymns or gentle protest songs (or recital of prayers by religious groups) should be encouraged. Police reactions to civilly disobedient protesters may range across a broad spectrum from sympathy to respectful courtesy to outright hostility and rough treatment. Sometimes, protesters engaged in sit-in's are not even arrested, as when jails are overcrowded or remote, or local politicians or police are supportive. Typically, though, arrest should be expected. If a protester intends "not to cooperate" by going limp on arrest, he or she may expect to undergo "pain compliance" techniques intended to "force cooperation" - an oxymoron that pinches verbally as well as physically. Recently, California state troopers used hurtful pepper spray against environmentalists, and Los Angeles police used "numchuck" devices against abortion protesters a decade ago. Being dragged to an awaiting bus or police van is painful enough. These scenarios suffice to show that demonstrators willing to risk arrest ought to be in good physical condition. For example, those with diabetes or hypoglycemia should not take part. Older folks should be especially prudent, as medical help for those in police custody may be significantly delayed if police are busy with mass arrests. Very light meals, if any, are recommended, and it may be helpful to have small snacks accessible (although pockets are ordinarily emptied upon arrest). Comfortable, durable clothing such as denim jeans and long-sleeved jackets and hiking boots over heavy-duty socks should be worn to protect against skin scrapes (tennis or low cut shoes or slippers may come off during arrest or while being dragged). Veterans often suggest wrapping ankles and wrists thickly with duct tape to avert sprains as a result of police twisting and to prevent chafing from handcuffs or leg restraints. All of these factors suggest that prior efforts to coordinate with police or prosecutorial authorities is desirable, if possible, to maximize prospects for mutual courtesy and cooperation.

Second, there are legal considerations. Professional legal advice should be sought and obtained as early as possible. Lawyers may be found who will represent protesters on a "pro bono" basis, without charge. Otherwise, fee arrangements should be worked out and clearly understood in advance. Some veteran activists prefer to represent themselves in court, mounting "pro se" defenses. At a minimum, however, protesters should assure that all those who indicate a willingness to risk arrest are fully aware of the various offenses that may be charged and the range of penalties that may be assessed. These will vary, of course, depending not only on each individual's specific behavior prior to arrest, but also on his or her criminal record. Prior arrangements should be made for putting bond money in the hands of non-arrestees, before the demonstration, so that whenever bond is fixed, any prisoners desiring release may be bonded out before their trials. But release on bond typically can't be arranged until at least several hours elapse after confinement, and often not until after one or two nights may be spent in jail (thus the stock advice, "bring your toothbrush"). Typically, demonstrators who "cross the line" are charged with petty offenses, misdemeanors such as trespass or disorderly conduct or disturbing the peace, for which maximum imprisonment may be only six months or a year. Even so, however, Judges have wide latitude in sentencing decisions, and having to spend six months or a year in prison, compounded by loss of income as well as fines of several hundred or thousands of dollars, may prove extremely harsh and costly to one's family life and career. If possible, lawyers should research the laws to explore whether "creative defenses" may be mounted. For example, Illinois' trespass statute contains an exception for those who enter another's land in good faith attempt to avert imminently threatened harm to persons or property, and it also has been held to require proof of a defendant's "specific intent" to violate the law before he or she may be convicted. These statutory features of Illinois law afford resourceful defendants with an opportunity to mount defenses urging the illegality of an Iraq war under domestic and international law or their own exposure to charges of complicity in "crimes against humanity" as outlawed under the Nuremberg principles and subsequent treaties and other enactments. While such efforts have often been nipped in the bud by federal or state judges wielding heavy gavels and armed with nationalistic perspectives, from time to time expert testimony about the illegality of nuclear war preparations has been admitted and, indeed, on occasions - especially before juries - some defendants have been acquitted.

But not all protesters who "cross the line" face charges of petty crimes or misdemeanors, and not all "petty criminals" suffer mere "slaps on the wrist" as their sentence. The powers that be have grown so hostile to civil protest that, according to one commentator, by 2000, peaceable civil disobedience remained a viable option only for those with assets to spare or none at all. Back in the Sixties, for example, only selected felony prosecutions were brought against a handful of high-profile defendants (e.g., Dr. Spock, Chicago's Conspiracy 7 - David Dellinger, Tom Hayden, et al, and Dan and Phil Berrigan). More recently, however, many more demonstrators whose protest non-violently risks arrest have either faced felony charges or otherwise have been stung by stiff prison sentences and fines. As reported by Prof. Bill Quigley, of Loyola Law School in New Orleans, who served as legal counsel for the "SOA 43," federal defendants charged with trespass at the Army's Ft. Benning, Georgia, stemming from their November 2001 protest against the School of the Americas, another 31 defendants arrested by state and local authorities for their participation in the same protest were taken into custody, held in Columbus, Ga. jail from Sunday until Tuesday evening, and after pleading guilty to one misdemeanor charge and "nolo contendere" (I don't admit guilt but do not contest the charge) to a second, they were sentenced to time served and released. On the other hand, the 43 defendants facing federal charges (18 U.S.C. §1382, outlawing trespass on military, naval, or Coast Guard property), 7 received 6 months probation, while apart from a handful of dismissals and an acquittal, 14 were sentenced to the maximum 6 months in federal prison, while another 14 were given 90 days jail time, plus fines varying from zero to $500 and up to $1000.

These stakes, already high enough, have been bid up sharply by recent court decisions approving expansive interpretations of the federal extortion and racketeering laws. Recently, Pax Christi joined Catholic Workers, Sojourners, the Southern Christian Leadership Conference (SCLC, Dr. King's group in Atlanta), People for the Ethical Treatment of Animals (PETA), Voices in the Wilderness, Kathy Kelly, the Berrigan brothers and Liz McAlister, Jim and Shelley Douglass, the Seamless Garment Network, Martin Sheen, and a host of other amici curiae, asking the U.S. Supreme Court to reverse this trend. That case involved a federal "racketeering" (RICO) judgment against protesters for "triple damages" stemming from a series of generally peaceful sit-in's. The lower courts held that the sit'in's interfered with patrons' access to businesses. This was held equivalent to "obtaining" the business's and patrons' "property" by wrongful use of "force," and therefore qualified as the federal felony crime of "extortion," each act of which is punishable by up to 20 years in federal prison. Conducting a "pattern" of such "extortionate" sit-in's was held to be "racketeering." The Bush Administration filed its own amicus curiae brief, urging the Supreme Court to approve the lower courts' holding that sit-in's interfering with access to any business are felony crimes of federal extortion.

If that weren't enough bad news for protesters, a Congressional Conference Committee just approved a sweeping bankruptcy "reform" bill, making it much more difficult for consumers to erase credit card debt by filing for bankruptcy relief. Worse, any judgment against protesters who block access to purveyors of any lawful goods or services (e.g., armaments) may no longer be discharged in bankruptcy. Absent a miraculous rejection of the Conference Report after Congress' summer recess, protesters saddled with triple damage liabilities for their sit-in's may end up having to pay off such debts over lifetimes.

These are terrible times, rife with grave threats to peace and justice among all human beings within our world community. The need for resistance and protest has never been clearer or more vital. Nor have the potential costs been dearer or more dreadful.

- Article by Tom Brejcha, Esq., long-time Pax Christi USA member and President of the Thomas Moore Society, a 501(c)(3) public interest law firm that provides legal services to those working to protect and enhance the dignity and sanctity of human life and to promote the cause of human rights.

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