If you have been contacted by federal law enforcement as a result of the uprising, contact the National Lawyer Guild’s federal defense hotline at 212-679-2811
The host Margaret Killjoy can be found on twitter @magpiekilljoy and instagram @margaretkilljoy. You can also support her and this show by sponsoring her patreon at https://www.patreon.com/margaretkilljoy. Your support has allowed us to get transcriptions available of the podcast for folks who gain information better that way!
Hello and welcome to Live Like the World is Dying, your podcast for what feels like the End Times. I’m your host, Margaret Killjoy. I use she or they pronouns. In this week’s episode I’m talking to Moira Meltzer-Cohen, who is a lawyer—not just any lawyer, but is my lawyer. It’s kind of weird that you get to use the possessive on lawyers. We’re going to be talking about repression and how the government likes to crack down on protest and revolt. And we’re going to be talking about, basically, know your rights, like how to interact with the police and how to interact with the feds. We’ll also be answering some questions that you all had from social media. And we keep referencing the fact that we’re going to talk about grand juries in this episode, but during the course of the interview we don’t in fact get to it because Mo is a remarkably busy person, as one might imagine, in this particular time in the world, and didn’t have time. And also, the episode was already gone on for about an hour. We will almost certainly have her back at some point in to talk about grand juries because they’re an important thing to understand from an anti repression point of view. However, at the moment, primarily, people are dealing with police and federal law enforcement. And so that’s what we focus on. This podcast as a proud member of the Channel Zero Network of anarchist podcasts. And here’s a jingle from another show on the network.
Rebel Steps is a podcast about taking action. Season one offered insights into how individuals can join movements. Season two focuses on the ways people can work together to build these movements. Organizing in groups presents many challenges. How do you care for each other and protect each other in the midst of political struggle? How do you lift up the voices of everyone in your group? How do you work through the inevitable disagreements? All of these questions have complicated answers. As I explore these questions. You’ll hear voices and stories from my community in New York City, spotlighting a range of organizers from the Metropolitan Anarchist Coordinating Council, Outlive Them, Pop Gem, Democratic Socialists of America, Libertarian Socialist Caucus, and more. Just like the first season, I returned Paulo Friere’s quote, “What can we do today, so that we can do tomorrow what we cannot do today,” but this time with the realization that building our capacity will necessarily happen alongside others. Find Rebel Steps on Spotify, iTunes, or wherever you get your podcasts and check us out on Twitter or Patreon.
So, welcome to the show, if you could introduce yourself with your name, your pronouns, and then any organizational or political affiliations that you feel like make sense with what you’re going to talk about.
Sure. I’m Moira Meltzer-Cohen, everyone calls me Mo. I am—my pronouns are she are they and I am affiliated with the National Lawyers Guild, and I am a non-denominational anti-authoritarian.
We seem to be getting a lot of those recently. I think that’s good. So I first met Mo when we were both working on a campaign for someone named Jerry Koch who was a political prisoner who, I guess, is now a lawyer.
Yeah, he is.
And that’s amazing. And, and yeah, Mo was just out of law school and then managed to write a motion that got someone free in a way that I think, to my understanding, kind of changed some of the ways that grand jury defense is done in this country or is understood in this country. Is that overly hyperbolic, or?
That is hyperbolic. I wrote a motion that is a type of motion that has been used since I think the 60s or 70s called a grumbles motion. It just, it’s unusual, partly because grand jury litigation is unusual. But I don’t think it was precedent-setting but it was—I didn’t expect it to work. And it did.
Okay, so you saved, you changed everything and—but you did very specifically set someone free right out of law school, as I understand, or right after passing the bar. And so we met doing work on that campaign and then ever since then Mo has been kind of the card that I keep in my pocket and a literal and metaphorical sense of—I mean, I’ve literally had nightmares where the police are holding me and I’m like, “I have to call Mo, you have to let me call Mo!” And then like Mo has come in and saved me.
I promise I’ll do my best.
And Mo has also done a lot of work for a lot of trans prisoners, including you were part of the most recent campaign to get Chelsea Manning out of jail. Is that right?
That’s right. I did not represent her while she was serving time after the court martial.
I represented her more recently, when she was subpoenaed to give testimony before a federal grand jury, and was then confined as a result of her refusal to do so.
Okay. And so I wanted to get Mo on the show because I mean, for one thing, you know, she’s an amazing lawyer. And also because so much of her work has focused specifically on anti-repression work. And, you know, okay, so what am I doing talking to a lawyer on a show that’s extensively about preparing for, you know, end times or bad times or crisis or disaster? And, I mean, if you’re listening to the show, you probably understand that revolt is absolutely an essential part of individual community and even probably species survival at this point. And, of course, revolt will always come with legal consequences, because what does one revolt against but a system that usually has laws and things. And so that’s why we have lawyers on our side. And so I want to talk to Mo today about—we’re gonna talk about a couple specific things, and we’re gonna answer some questions that came from you all. And some of the stuff that we’re going to talk about is we’re going to talk about what to do in terms of when the police—like how to interact with the police, how to interact with the feds, and then we’re going to talk about grand juries, which are annoyingly complex and not a simple thing to wrap your head around. But I think a very important part of repression and anti-repression to understand. Does that kind of cover what you’re hoping to talk about?
Okay, so let’s start with the real basics. Let’s start with a Know Your Rights. You know, I’m walking down the street, maybe I’m leaving a protest, and the police are like, “Hey, come over here, we want to talk to you.” What do I do?
Um, I mean, the first thing that I want to say is some of this varies state by state. But by and large, you know, you do have some pretty established constitutional rights. And the first thing I would say is if you’re approached by an officer, and they ask you a question, you know, in the same way that if some stranger walks up to you, and starts giving you the power quiz, you have no obligation to stick around and talk to them. You know, you have no obligation necessarily to stick around and talk to the police. So the very first thing that you would do is you would say, “Am I free to go? Or am I being detained?” And if they say, “Well, you’re not being detained,” then you bounce. If they say, “No, you are being detained.” Ask why. They might not tell you, they might make fun of you, they might tell you something that’s completely off the wall. They might say, “Well, you fit the description.” But whatever they say or don’t say, it’s information. And I want to be very clear that, you know, asking these questions, it’s not magic. Very often the police neither know nor care what your rights are, you know, most of this stuff that I’m going to say isn’t particularly powerful in the moment of a law enforcement interaction. But it’s still really important to ask these questions and invoke the rights that I’m going to try to teach you to invoke, because later when you’re in front of a judge, if you have done this, then your lawyer can make certain kinds of arguments and try to mitigate the harm that can be caused by interactions with law enforcement in ways that, you know, your lawyer can’t mitigate that harm if you have not invoked your rights.
So you want to say, “Am I free to go? Or am I being detained?” Because if you don’t ask anything, you know, any further interaction that you end up having with that officer is going to be construed as something that you consented to.
Right. And so if they say you’re free to go, bounce, if they say you’re being detained, ask why. Make a note of what the officer looks like. If you can see their badge number, make a note of it. If you can see their name, make a note of it. I mean, mentally obviously—you are probably not standing there with a notebook. If they ask if they can search you, say no. If they try to search you, say, “I do not consent to this search.” Very often it can be really important to say, “I do not consent to this search,” very loudly and clearly so that other people around you and their videos can pick it up. Right? Because an important part of being able to argue that you invoked your rights is being able to provide evidence that you invoked your rights.
Right. So you want witnesses you want people’s video to reflect that you said you didn’t consent to a search.
Yeah, one of the things… go ahead.
Well, again, this doesn’t mean that they’re not going to search you.
Do they have a right to search you for like—like I used to, you know, when I was more of a street kid and squatter and things like that, I would be stopped by police on a regular basis, two or three times a day, at least twice a week for about a year or two. And one of the things that always seemed like it was part of that encounter was at the very least sort of their right to basically, like, pull the clip knife out of my pocket.
And that kind of thing. Like, what are they allowed to do, regardless?
So they’re allowed—if they have a reason to stop you, they’re allowed to pat you down over your clothes to look for weapons in the event that they have a reasonable fear for their safety. Now, who gets to define reasonable?
Them, I’m guessing.
Yes, they get to define reasonable and this is relevant, basically, you know, all the time, right? Who defines the word reasonable? It’s going to be the police, at least until you get in front of a judge. This is relevant, for example, with another thing I was going to say, which is you have a right to film the police, you have a First Amendment right to film the police and the performance of their official duties from a reasonable distance.
Right. So it’s not a crime to film the police, it can be unlawful to do anything that the police can construe as interfering with their duties.
Right. So, you know, certainly I would advise someone against getting in between an officer and the person they’re trying to arrest in order to get a better shot. You know, and if the police ask you to back up, what I think can be useful is to say out loud, I’m backing up and take one step back. Right.
Yeah, that’s usually what I’ve managed to do is basically be like, “Okay, how far do you want me to go,” and then I walk like two feet. And I’m like, “This good? I’m here now.” But that’s actually usually me kind of often trying to—I would never interfere with the police, but maybe have the police pay more attention to me than the people that they would prefer to be paying attention to in that moment, is something that sometimes occurs to me. And so I try to play this very polite game of, you know, continuing to engage them to ask them very specific questions about how far I’m backing up.
This is gonna be an episode where I tell my lawyer many things that Mo probably wishes I didn’t do. Now that I realized…
That—you know, just as long as you’re aware that this conversation is not privileged.
I don’t have—Wait, no, but I thought this whole podcast was privileged now, I thought that was the whole thing?
Oh, I don’t think there’s a podcaster privilege.
Interesting, interesting. But if I have enough clout, then I’m immune to the criminal justice system?
Well, I mean, I think that that’s clear, because we can see what happened to certain Twitter accounts, once people stopped having enough clout.
Mm hmm. Okay, so just to continue to interject with like, along the way of like—yeah, whenever I’ve done that, “Am I being detained?” I’ve actually had a much higher success rate than I initially thought I was going to have with that tactic.
I think that if you have an opportunity to ask, you may have pretty good success with it. The thing that usually happens with most of my clients is there’s never an opportunity to ask, right? People are—I mean, I work a lot with protesters. So I do a lot of stuff with mass arrests. And in a mass arrest… You know, I have had one experience where I observed a group of people who were kettled, shouting in unison, “Are we being detained?” And the officers eventually determined that they didn’t have a basis to detain them, and so they let them go.
But typically in a mass arrest, cops show up, use arrest as a form of crowd control, and everybody sort of gets taken off the street with—and there’s no opportunity to say, “Am I being detained?” You’re just knocked to the ground and flex cuffed. But to the extent that you have an opportunity to ask these questions they can be, you know, it can sort of force a decision. And sometimes that decision will be, you know, we don’t actually have enough cause to hold this person.
I think the more important stuff is being able to, you know that’s—asking, “Am I being detained? And if so, why?” Is good for information gathering. Even if it doesn’t result in you being released. Right? Saying, “I don’t consent to a search,” is really important down the road, because if you’ve explicitly said that you do not consent to a search, anything that may have been yielded or found in a search that you haven’t consented to can be suppressed as evidence, right? It would be considered an unlawful search or it could be considered an unlawful search, a violation of your Fourth Amendment right against unreasonable search and seizure. And a judge might say, “Well, yeah, okay, we found this thing on you during a search, but we can’t use it as evidence against you because we obtained it— the police obtained it unlawfully.”
At what point are they allowed to—go ahead…
So they are allowed to pat you down over your clothes to check for weapons if they have a reasonable fear for their safety which, of course, they get to define. And that definition is expansive, you know, so in order to then search you, you will be—if you’re arrested—you will be searched incident to arrest, okay, right? The circumstances under which they are, quote, “allowed” to search you are extremely complicated, extremely fact specific, can vary from state to state, are different depending on whether you are walking around, are in a car, are in your home, are in someone else’s home, are in someone else’s car. So I don’t think it’s particularly useful to get too into it, because in any event, you’re not going to win an argument with a police officer who wants to search you.
Right. The sort of bottom line here is to say, “I’m not consenting to any searches.” Now that said, people know, really, what is safest for them. And sometimes, it can be safest to consent to a search. I’m not going to advise you to consent to a search, but I’m going to respect your expertise about your own safety.
And that’s a personal decision that you’re going to have to make in the moment.
What I want you to understand is that you don’t have an obligation—you don’t have a legal obligation—to consent to a search, no matter what the police tell you.
And ultimately, the question of the lawfulness of a search is not a question that could be answered by a police officer, or by you. It’s a question that’s going to be answered, if at all, by a judge. Later.
And so arguing about the lawfulness of a search is probably a great way to escalate things out of control.
But if there’s a way for you to say, safely, “I don’t consent to this search.” You can do that.
Yeah, like kind of ah—when I talk to people, I personally—and this is clearly legal advice, because I’m not a lawyer—I basically tell people to try and be like, polite but firm with police. You know, my literal, like, thing I would just say constantly is, “I’m sorry, Officer, but am I being detained?” And I would like definitely say, “Sir,” I would say like, “I’m sorry, Officer,” I’d be very polite, but I would always be like, you know, “I do not consent to a search,” or whatever.
And you and I have certain characteristics that make that less dangerous for us to say, than, you know, and so, you know, policing—the issue with policing, it’s not about law, it’s about power. And the distribution of power is uneven in very predictable ways. So when I’m talking about the law, I want to be very clear that the law is a separate thing from power. It’s a separate thing from justice. You know, this is what your rights are, here’s how you can invoke them.
I cannot stress enough that there is a difference between what your rights are and what policing looks like.
So I’m going to move on from searches. You know, just to reiterate this, again, it is a fool’s errand to argue with a cop about whether a search is lawful. What you can do is invoke your right against unlawful searches or against unreasonable searches by saying, “I do not consent to this search.” You need to know that if you are arrested, you will be searched when you get to the precinct. If you are arrested, the very first thing that you should do is start saying, “I am not resisting.”
Because police officers almost universally will start screaming, “Stop resisting,” whether or not you are resisting. And it can be really important, again, for evidence that’s going to be gathered and presented later if there is evidence that you were saying, “I am not resisting.”
God, I fucking hate police. Yep. Okay.
The other thing that you need to say—and this is the one sort of invocation of rights that is powerful and that you do have control over—is I want you to say, and I want you to practice—everyone listening to this, I want you to practice ten times a day saying, “I am going to remain silent and I want to speak to a lawyer.” You have to say that you’re going to remain silent.
And then you’ll have to actually remain silent. Because if you don’t actually remain silent, you have waived your right against compelled self-incrimination. The Fifth Amendment is in the constitution for a reason. There is never a compelling reason to talk to a cop, before you have spoken to a lawyer.
It’s okay to tell the cops things that they already know about you like your name, your date of birth, your address.
Are you legally obliged to provide that information and or an ID?
It depends. It depends on what state you’re in. Some states are what are called “stop and identify” states where it’s an independent crime to refuse to show ID or to refuse to identify yourself. Other states, it’s not a crime. But it’s—it can make your life much harder. So for example, in the state of New York, if you’re stopped on the street for something that would be considered a ticketable offense, a summonsable offense, a cop can write you a summons on the street and cut you loose if you show them your ID. And if you don’t, they will take you in and process you until they can confirm your identity, which is, you know, four to eighteen hours out of your life that you’re not getting back.
So, you know, my advice is typically that anything you can do to abbreviate an interaction with law enforcement is desirable, like the longer and interaction with law enforcement goes on, the less good it is, the less safe you are.
So my general understanding of like, where that would come in, and the process would be like, a cop is like, comes up to me and is like, “Let’s see your ID.” I say, “Am I being detained?” And if he says, “Yes, you’re being detained,” I ask, “What for?” And then he gives me a bullshit reason—I’ve literally been told because I don’t know who you are. That was once the reason I was being detained. Which I was like, I had a feeling that wasn’t gonna work well in court. But I also had a, like, at that point it seemed to me that there’d be no reason to argue, because a cop is allowed to say whatever they want, as far as I understand about why you’re being detained, even if it’s not later justifiable. So at that point, once I’m being detained and they want to see my ID, at that point I give them my ID. That’s like the understanding that I’ve been under for a long time. Would that…
If they give you a chance. Right? I mean, this is all—I want to be really clear. again, like, when I’m saying, “Oh, these are the questions that you ask,” a lot of times, you don’t get an opportunity to ask all of these questions. Right? So even if you get a chance to say, “Am I being detained?” So for example, I was arrested once doing jail support. And what happened was that the cop rolled up and said, “Let me see some ID,” and I said, “Am I being detained?” And then I got thrown in a van.
Yeah, so your mileage may vary. Yeah.
Yeah, mileage may vary. That’s exactly right.
Um, again, the police very frequently neither know nor care what, what the sort of phases of an interaction are legally supposed to be. So, you know, I have a lot of people ask me things like, “Well, when can the cops kick in my door?” And, of course, the answer is: whenever they want to. The cops can kick in your door at any time, for any reason, or no reason at all. The question is, what do they say later to justify it? And again, that’s sort of the same thing in this situation. So, if you are asked for ID, it can be really important to know, given what whatever state you’re in, whether it is an independent crime to refuse to identify yourself. In some states it is and in some states it is not. In all states, I would venture to say, it can make your life much more difficult if you refuse to give ID. I want to take a second and talk about trans people and the apparent, you know, the inability of police to perceive gender non-conforming people as who they are based on their ID.
You have a First Amendment right to use any name you want to use, whether or not it is your legal name, as long as you are not using that name to avoid civil or criminal liability.
That said, if you’re having an interaction with law enforcement, you know—again, this is a safety calculation that you are going to have to perform for yourself—it is not a crime to tell the police, you know, whatever your real name, the name that you use, to give them that name. It can make your life harder.
And depending on what state you are in, there may or may not be any training or protocols for the detention of trans prisoners. Right? So you shouldn’t get charged for giving the police a name that is not your dead name. But it can present some complications with respect to, like, what happens if they print you, or what happens if they look at your ID, or they demand your ID and the name is different and, you know, if your appearance is different than your ID.
That’s why I always refer to, instead of a dead name, I tend to think of it as my Fuck You name. Because the only people that I’m giving my legal name to are people like, fuck you, like, I don’t care about you to tell you my actual name. And obviously every trans person is going to handle that differently, you know, in the same way of like navigating walking through this world. Like, if you go to a demonstration, choosing what your gender presentation is versus like what your ID says it’s like, obviously, super complicated.
Yeah. I mean, it’s a whole sort of separate thing that I could like, really get into, but I don’t want to minimize it, right? I’m not want to say like, Oh, it’s fine to just give the police to tell the police, you’re not giving them your state name and to give them your real name. You know, do what feels safest. And I’m not saying that you never will be charged for, like, what would be called, like, false personation. I have certainly—not in quite a while—but I have seen people charged with false personation when they give their real name and not their dead name. It is always immediately dismissed.
But it’s scary. And it’s traumatizing. And it’s, you know, it’s an act of violence by the state that’s targeted to be transphobic.
And it’s a shitty power move. I’m not going to say that there aren’t consequences to it. Of course, there are. Cops are notoriously transphobic, as are many judges, as are many prosecutors. I suppose, as are many defense attorneys, I guess. But particularly depending on where you are in the country. But I do want to sort of reassure people that, you know, I don’t think there are lasting legal consequences for just using whatever name it is that you use and the pronouns that you use,
So, to go back to—okay, in this situation, you’re now in jail, and you’re saying, “I would like to remain silent,” if you do end up talking, you said that that ends up like ruining your—it gets rid of your your right to remain silent. Can you then—you can then re-invoke that?
Absolutely. So this is really important. So you say, “I’m going to remain silent and I want to speak to a lawyer.” Then you remain silent. If the police are asking you questions about, like, “Do you know, do you expect someone at your arraignment? Do you have a lawyer? Would you like a phone call?” Obviously, you know, answer those questions. If they start asking you questions about what you had for breakfast, what your favorite baseball team is, anything that is substantive, my advice would be to stay, “I’m going to remain silent and I want to speak to a lawyer.” I genuinely do not think there is a reason to engage with police about sports, politics, music, the weather—literally anything, ever.
What if they just want to be your friend? And then you can make friends with them? And then they’ll just let you go?
Mm hmm. Yes, it has never worked. I very frequently say you cannot talk yourself out of an arrest, but you can always talk yourself into a conviction.
Please don’t talk to cops. Please just don’t do it. We really, really want you to invoke your right to remain silent because you cannot unsay something you have said to a cop. Right? If you need to use the bathroom, say you need to use the bathroom. Okay, if you need a drink of water, so you need a drink of water. That said, if they give you a bottle of water, don’t touch it to your lips, because they’ll take it. They’ll take that bottle and collect your DNA from it and put it in a database.
So that’s cool. And normal. And totally not dystopic.
Anyway. But if you need, you know, if you have human needs: food, water, a phone call a bathroom, medical attention. Or if someone that you’re in with needs those things, say so. Advocate for yourself. Do what you need to do. And then re invoke your right to remain silent. And if they start asking you questions about anything that happened leading up to your arrest, anyone you hang out with—if someone in your cell starts asking you those questions. You know? Don’t answer those questions. That’s nobody’s business. That is information to which the state is not entitled.
Right? We don’t do their job for them. So invoke your right to remain silent, talk to the extent that you need to talk in order to get your needs met or in order to advocate for other people, and then re-invoke your right to remain silent.
How do you get a lawyer in this situation?
Typically, you are either cut loose at the precinct with some kind of ticket that says, “Come back to court on this day,” or you’re going to be taken in front of a judge. Typically, if you’re taken in front of a judge, you will have a lawyer appointed for you, either at that time or very shortly thereafter. There are states where you have to apply for a public defender. And that process sometimes is very onerous. You know, so you may not be given a lawyer before you, before—I would say—you need one. But you know, you’re not going to be when you get in front of a judge, you shouldn’t be asked any questions other than “How do you plead?” So there’s not a lot of opportunity to incriminate yourself at that point. What I would say is, you need to understand that when I talk about invoking your right to silence, I’m not just talking about things that you say directly to cops. I’m talking about like, anything you say, quote “publicly,” not just to a cop, but anything that a cop could discover can and very much will be used against you. So if you have been arrested, don’t post about it necessarily on social media. Certainly don’t do that before speaking to an attorney. Don’t talk about anything that happened leading up to that arrest to anyone except your lawyer or maybe your doctor or your therapist, right? Because those are relationships where there is a privilege, right? Where the things that you say to those people don’t have to be disclosed.
Like this podcast.
Right. Like this podcast is totally privileged, Margaret. It falls under the attorney podcast or privilege.
I’m going to get us fired.
Does that kind of cover your rights in casual encounters, detainment, and arrest?
Yes, I really cannot stress enough how important it is not to post about protests or unlawful activity or who you’re hanging out with at the anarchist bookfair on social media. And if you’re doing the live streaming thing, or taking photographs or trying to do some kind of documentation, the people who need to be observed in this situation are police officers because they are the people who have power that they abuse, right? So if you feel very strongly that you need to take pictures at protests, take pictures of the police. Because taking pictures of protesters, even if they’re not doing anything unlawful, can have really serious legal consequences for them. So if you see somebody and, you know, the cops can see someone in a photograph who, you know, they believe might have witnessed something unlawful, that person then can be the target of a grand jury subpoena, right? Which we’ll talk about in a minute. But I mean, it can be extremely disruptive to somebody to be called before a grand jury, even if they don’t know anything about the crime that’s supposed to be investigated. So, you know, I just—please, please stop posting pictures on social media. I would like fewer clients!
That’s how you know you’re a lawyer on the good side. “I want fewer clients.”
I want my whole profession to be obsolete.
But in the meantime…
Yeah. Um, should we talk about grand juries?
Yeah, I also wanted to talk about something… Oh, yeah. Don’t take pictures of protesters, because, um, there’s like a whole group of non state actors, who will doxx you. And we don’t need that either.
I think that there’s somewhere—and it’s probably more complex—and this really gets into the—maybe you’re the wrong person since you’re a lawyer and you have—where you’re coming from about it. There is this like, awful balance between, on some level, the visibility of these demonstrations is what has allowed them to generalize. And there’s a certain amount of safety that I think that can only be found through the generalization of revolt, right? And I feel like I want people to, like, do a better job of like—I mean, you kind of covered this. It’s like if you’re going to, you know, film these things, like film the cops instead of the protesters or whatever. But like, the pictures of the burning cop cars are a huge reason why these results are so big. On the other hand, people’s lives are ruined, because there’s pictures of ruined cop car—burned cop cars.
Look, I will say this. I say this a lot. People get to make their own decisions about the degree of visibility they want. And so when I’m saying don’t take pictures of protesters, you know, what I really mean is like, consent is important. And maybe people who are in those group shots haven’t—or those crowd shots—haven’t consented to that.
And I think that, you know, you don’t have to stop talking about your politics on social media. Like saying that you’re an anarchist on social media at this point in history is not unlawful. It’s still covered by the very First Amendment, and you can do that. And, you know, it doesn’t mean—you know, anything that you put on social media, of course, has the potential to invite increased scrutiny of you and your community. And that doesn’t mean that the solution is self-censorship. I think the solution is courage. But I want people to be aware of the risks that they may be running and the ways in which they may be inviting increased surveillance.
Of not only themselves, but their friends.
Yeah. And especially like, what were you talking about, about shooting pictures of crowds and things like that, you know, because it’s a it’s a different thing between someone who—and I even, I wouldn’t… You know, it’s a different thing between posing in front of a burned out cop car with no one else behind you. Which is a terrible idea, like, actually. But it’s—obviously if you’re taking pictures of people attacking a cop car, it’s a very, very different situation. Okay, so we just took a break to talk about how we’re going to how we’re going to organize the rest of the episode and We determined it would be more fun to cut to some of the questions from Twitter and Facebook first. And because you all had a bunch of questions, and they’re not quite the same script that Mo has to give to day in and day out to teach people their rights. So, let’s see… So one person wanted to ask about jury nullification and what that concept is and whether or not that’s like a useful thing we should be pursuing.
Um, I think that, as I said before, the law is not always consistent with justice, and certainly is not a one-to-one correspondence. And jury nullification is a concept that acknowledges that. And jury nullification is basically when a jury determines that the person who is on trial did, in fact, engage in the conduct alleged, and that that conduct was, strictly speaking unlawful, but they determined that they believe as a matter of conscience, that the law criminalizing whatever the behavior was is itself so unjust that they refuse to enforce it. And so they find the defendant not guilty, basically, as a matter of justice, even if they know very well that there’s no serious debate that the defendant did, in fact, do whatever it is they were alleged to have done.
Okay. That sounds gloriously optimistic in a way that I might not share. Okay.
I think it’s—it is something that happens and certainly defense attorneys can advise juries that that is a that is a possibility. A defense attorney can certainly say, you know, you are not required as a jury to come to a unanimous conclusion and, in fact, you must vote your conscience. You are legally required to vote your conscience and so you cannot, you know, you must not allow yourself to be bullied into reaching a verdict or into agreeing with your fellow jurors. You know, I think there are—it has some utility. I think it’s a really fascinating concept. I know there’s a really lovely illustrated zine about jury nullification.
It’s by the guy who wrote, “Go the Fuck to Sleep.”
Oh, wow. Okay.
Yeah. It’s a fascinating concept. It is lawful for a jury to nullify.
Okay. Does that take consensus of the entire jury?
Interesting. Cool. Okay. So then the next question, which I’ll say how is was originally phrased and then possibly present a rephrasing? “How do I stop paying taxes entirely and never get caught in Minecraft?” Which I might—the question that I would maybe ask—I actually, I warned you ahead of time that I was gonna ask this question. I clearly am not advo—whatever. Anyway, I would, you know, the rephrasing might be, “What are the means by which tax evasion laws are enforced?”
The IRS has federal agents, and you can be federally charged for tax evasion. I am a lawyer and my job is not to advise people on what they should do or what they should not do, but to advise them of the potential consequences of various courses of action.
Okay, and so the course of action is that if you evade paying taxes, and they can especially—I’m under the impression that if they can prove that you tried to evade paying taxes for like—that you actually, not that you like, fucked up and forgot to pay but that you like, consciously chose not to pay. That’s when it becomes like, a bigger deal, right?
Yeah, I will say this: if you can’t pay your taxes, and you are in touch with the IRS about that. They’re—they will work with you. If you are trying to evade your taxes, you can end up doing some fairly serious time. So I think that’s just a cost/benefit analysis if you’re going to do for yourself, my man.
Uh, you know, is it worth it to you to do a whole bunch of time in federal prison? Maybe it is. That’s not a choice that I would probably make for myself. And that’s not necessarily something that I want for you, question asker, but it’s also not my decision.
Okay. Yeah, I’m under the impression that especially like, sometimes higher profile people who don’t like the government sometimes get audited more than other people. I don’t know, this is—
Yeah they do.
And so that is a good reason to consider your public nature versus how carefully you pay your taxes.
Yeah, I think it’s really important to think through, you know, whether your goal is to be visibly smashing the state, or whether you feel more effective avoiding the state. And you often cannot do both.
So it’s the one crime at a time theory.
Hmm. I haven’t heard that. I’m gonna have to think about that.
One crime at a time is like, wear your seatbelt while you’re like, have stuff in your car that you don’t want anyone to know about. Don’t j walk on your way to the demo. You know? That kind of thing
I, I think it’s a—you know, this has to do with ethics, right? Like, what are your goals?
What will help you achieve those goals? How badly will your objectives be undermined if you go to federal prison?
Because unless your name is Mumia, you are not as effective in a jail cell as you are out of one.
I mean, also, how effective could Mumia have been if he weren’t in jail cell?
Yeah. Okay, so—
—so that was depressing.
Yeah. Let’s move on to two related questions. Okay. Well, the first one is: any recommendations for pursuing a law career as a radical?
Be prepared to be really broke?
That’s pretty much it. You got to love what you do. You got to love the people you’re doing it with. Um, I think it’s absolutely possible to be a radical and to be a lawyer, but it looks different than most law careers.
The only lawyer I knew before going to law school was my grandfather, who had gone to law school for free at night at the Y in 1932. And he was a labor lawyer. And I didn’t really know, up until I went to law school, that there were people who wanted to become lawyers for reasons other than standing up for justice, which is hilariously naive. But I just was like, very sheltered in this way. And so the only role model I had for what it meant to be a lawyer was someone who, you know, whose heroes were Sacco and Vanzetti.
You do have a different background than most of my friends.
That’s probably true.
I think it’s cool.
And so, you know, when I was deciding to go to law school, it didn’t really cross my mind that there were other ways to be a lawyer than the way that I am currently a lawyer. But then, when I was in law school, I was sort of flabbergasted and demoralized by how committed to law people are.
Would you say there’s—in my head, I think of there’s like three alignments of lawyers and like a DND. sense, and that there’s people committed to law as like a principle—in the same way that I believe in anarchism, I believe that anarchism can never be attained, but you always strive for it. I’ve met lawyers who have the inverse of that, right? They’re like—because in my mind I’m like, the law doesn’t work. Look around. It’s a terrible system. And then they’re like, yeah, but we try and make it better. But like, not make it better in like a social justice way, but literally, like a law as an abstract concept way. Then there’s the anti-authoritarian lawyers who go to law school to learn tools by which to navigate a system that we all have to run into. And then there’s the like, in it for the money lawyers. Which is funny because when you’re talking about like, if you want to go to law school, prepare to be poor. And it’s like—I feel like the average person going to law school, in my head, is going to law school for the inverse of that. But maybe I have a misconception of…
I don’t know. I don’t know all the lawyers. I don’t know. Sorry. You’re gonna have to do some editing Margaret.
Okay, that’s fine. I’ll just cut out my whole part of that—my whole alignment spiel.
No, I like your alignment. I actually really like your alignment.
Um, yeah, I mean, I don’t know, if I have a ton of advice. I think it’s really hard to be in a profession that incentivizes—frankly, that is like a harm-maximizing model where the law is truly set up almost universally to diminish the self-determination of my clients, and to maximize the self-determination and lack of accountability of the already powerful. And that does not draw meaningful distinctions between things that are unlawful and things that are harmful, such that people are punished for things that are not harmful, and cannot be held accountable for things that are. Like, that is a hard thing to deal with. And on the other hand, like, you know, I love my work. And I feel really fortunate to be able to work with the people that I work with. And be in a community of people who care about the same kinds of things I care about and who struggle along with me to make my job obsolete.
Okay. So if you want to be very effective, work all of the time and be very tired, becoming a radical lawyer is a decent course of action.
That makes sense to me. That’s probably part of why I didn’t end up a lawyer. When we were doing that campaign for Jerry, Jerry ended up a lawyer. And I, you know, I toured around the country giving talks about grand jury processes, and lawyers would come some of the talks, and then be like, “Oh, you actually you did that better than they gave it to me in law school.” Not to just like—because I’m actually an amazing lawyer, but I’m trying to say. But, um, and I was like, “Oh, maybe I should, maybe I should go into law.” And then I was like, wait, no, I like I’m like, spending good chunk of the day, like, just like kind of staring at the leaves or, you know, not talking to people. Um, okay, so to tie into that question, what can non-lawyers do to aid and support a radical law agenda?
Be on support committees. Do jail support. Write letters to political prisoners—so write letters to prisoners! Join Anarchist Black Cross, join Black and Pink. Get involved with your local chapter of the National Lawyers Guild. That’s it. That’s it. That’s the end. There’s no other things you can do.
Emotionally support the already-tired lawyers that you know. Bring them food. I would bring you food right now. Before we had—before we started this talk, I was like, I am so tired—
I wish you could bring me a nap. My at-rest state that since June, is vibrating with exhaustion.
Yeah, see, most people don’t vibrate when they’re tired.
I am actually, I’m fine. I don’t want to I don’t want to mislead you. I am generally fine. For some reason. I’m just very tired today.
So okay, a couple people wanted to ask about basically how like, now that radicals have guns, now that like leftists have guns, which is sort of new on the scene in the past years or so. I mean, obviously, you know, that goes back way back. Right. IWW is perfectly content to have rifles and the Battle of Blair mountain and all those things. But there’s been a lot of questions about how like, lawyers who know gun laws tend to not like leftists, and progressive lawyers tend to not like guns, or not know much about guns and gun law. And so there been some questions about basically how you find that—and because I know there’s been a lot of, or at least I’ve been hearing that sometimes gun laws are being used against, like to target radical communities and things like that.
There was a lawsuit that was brought after Charlottesville that targeted a lot of the militias that had come down for that stupid rally. But then it also targeted Redneck Revolt, right? I mean, that’s like the kind of liberal thinking in the law that like places a lot of faith in The Law without a lot of nuance that I think can be really damaging. So yeah, I mean, I think this question asker has a—it’s a perspicacious question. I don’t have a great solution. I mean, for example: So one thing I would say is that more radical lawyers in more rural areas are more likely to have a grip on this. Because there are, culturally, there’s like, a lot of places in the United States where having guns is really very common, and is not necessarily a matter of political alignment. I would say like, in places like New York City, where the city itself, the municipality itself, has like extremely stringent gun laws. New Jersey also has extremely stringent gun laws. San Francisco, right? There are certain places where there is sort of this, like, liberal distaste for firearms that ends up being kind of a weird proxy for your politics.
Hmm. So like, of you have a gun, and then therefore your right wing?
Yeah. And I don’t think it’s like—I don’t think it’s a good thing. And I don’t think it’s a necessary thing. So I think there are parts of the country where that’s the case. But I also suspect that like, places that are more rural and places where it’s like much more typical for people to own guns, gun ownership is not a proxy for your politics. And so I think that there are definitely parts of the country where you’re not necessarily going to only find attorneys who are conversant with gun law who are NRA members.
Right. I just, I think that’s a problem that is born of a certain kind of geography more than a certain kind of politics.
I don’t know a ton about gun law. But I do think that there’s—I think that there are attorneys who are not super conservative or like, explicitly white supremacist who do know about gun law. Okay. And I certainly think, you know, let’s like actually look at the ways in which state repression has been brought to bear against black and brown communities by a gang law. There are definitely defense attorneys who work with communities that have been subject to intense state repression, that is basically on the basis of gun ownership, who definitely are going to know about self-defense law and gun law, who are not going to be super conservative. They’re just not necessarily going to be working with like, ant-racist white people. So yeah, I think that, you know, when we’re talking about like, radical attorneys, or movement attorneys, like, I think we are actually doing a disservice to the profession of defenders who might not be doing work that is explicitly politically motivated, but they’re definitely defending against prosecutions that are politically and racially motivated. And they have that expertise and are useful resources to our communities. But like, they might not be visible to like anarchist communities because they’re actually on the ground doing the work of like day-to-day defending against racialized state repression that maybe isn’t legible to white anarchist groups.
That’s a really good point. And are there folks sort of within the framework of lawyers that I feel like most people in movement spaces that I’m and talk about is the NLG, the National Lawyers Guild—and are there lawyers within the nlg? Who might be more from one way or another versed with gun laws? Or is that still not really as much part of NLG culture?
I don’t think it’s super part of NLG culture at this point, because it’s only pretty recently that we’re seeing people at protests—the people who we defend at protests—being armed.
Like, that’s just a more recent development. But again, I think some of this is just about geography. I think like, guild lawyers in places like South Dakota and Oklahoma and West Virginia are probably going to have a lot more fluency with their gun laws than people in New York City or Newark.
Right. Okay, so we just talked about what to do if the cops are stopping you if you’re getting arrested. What about when feds are coming around and knocking on people’s doors?
Yeah, so this is actually really important right now. We’re seeing a lot of federal involvement in protest in what are more often and typically historically understood to be matters that would fall under state jurisdiction. So we’re seeing federal agents policing protests, we’re seeing the assertion of federal jurisdiction based on really tenuous grounds. And taken together with, you know, Trump’s claims over the summer about Antifa as like a domestic terror organization, and Biden’s sort of parallel identification of anarchists as categorically a criminal identity. Federal power is being consolidated and escalated to repress First Amendment protected activity nationwide. So the first thing that I want to say is, we started a hotline. The National Lawyers Guild started a federal defense national hotline, you can reach it at 212-679-2811. For folks to call in the event that they have an encounter with federal law enforcement.
I’m just gonna say it again. It’s 212-679-2811. Okay, sorry.
And so if you call that hotline, you’re going to get me and you’re gonna be able to have a privileged and confidential—and if you call me back on Signal—a secure conversation about this. What I mean by an encounter with federal law enforcement is not that you got hurt by a federal agent. That’s kind of a different issue where you’re going to want a civil rights lawyer.
What I mean by an encounter with federal law enforcement is, federal agents call you or visit your home or work, or you or someone close to you gets arrested by federal agents, or you are served a federal grand jury subpoena. This is not the right hotline to call if you’ve been hurt by police at a protest, although I will refer you appropriately.
And it is not the right hotline to call about whistleblower matters. But if you call this hotline, you can have a privileged conversation about your rights, risks, and responsibilities, and I will do my best to refer you to the most appropriate legal resources in your geographic area no matter where you are.
So the—basically, the most common kind of first contact folks have with law enforcement—with federal law enforcement—is a door knock. So historically, this is the most common way that federal agents interact with activists in person is via door knocks, where they just attempt to approach an individual in their home or work and see if they will speak to them voluntarily. I cannot stress enough that you have no obligation to let law enforcement into your home without a warrant and you have no obligation to cooperate with law enforcement investigation. Certainly not before talking to a lawyer. I am not being contrarian. Declining to answer questions is not evidence of guilt, whatever they may tell you. It is protected by the Constitution. And failing to exercise your rights can be extremely dangerous for yourself and others. There is just never a reason—never a compelling reason—not to consult with a lawyer before answering questions posed by law enforcement. So if an agent knocks on your door, get in the habit of finding out who was at the door before you answer it. If they say, “We just want to talk,” it’s cops. If it’s law enforcement, ask if they have a warrant. And if you’re able to do so call your lawyer or call that hotline immediately.
If they have a search warrant, ask them to slide it under the door.
And then you’re looking for a signature on that, right?
Yeah, you want it to have been signed by a judge within the last 10 days.
If it is an arrest warrant, you can walk outside and shut the door behind you. I honestly would say like, ask them if you can surrender yourself later with an attorney. And if they have a warrant and they say no, walk out and shut the door behind you. Because at the very least, you know, you can by surrendering probably avoid further violence and protect your home from intrusion. If it’s a search warrant, stand back from the door and read it aloud so that you know what they’re allowed to look for and where, and the agents know that you know what they’re allowed to look for and where. If they don’t have a warrant, you don’t have to open the door.
What I want everyone to be able to truthfully say is, “I am represented by counsel, let me get your name and number and I will have my lawyer call you.” The reason I want you to be able to say you’re represented is that once law enforcement knows you’re represented, they can’t approach you directly without a warrant. So, you know, either say, “I’m represented by counsel, leave your name and number and I’ll have my lawyer call you.” Or if you don’t yet have a lawyer, say, “Let me get your name and number and I’ll have my lawyer call you.” And then call the hotline.
So what will happen after that—what should happen after that is your attorney would call them try to figure out what they want, if there’s a prosecutor who’s working with the investigation, anything else we can find out. And then this attorney can be the sort of conduit between you and the state, to the extent that there needs to be any kind of communication and a bulwark against state intrusion. And honestly, typically, this is sufficient to put an end to the inquiry, because the feds often want low-hanging fruit. They don’t like dealing with lawyers. They want to see if people will talk to them voluntarily, and if they won’t, that’s often the end of it.
If that isn’t the end, the sort of two most likely outcomes are an arrest warrant, in which case, you need an experienced criminal defense attorney—preferably one who is really able to listen to your goals, which in the event that you are someone who’s like being targeted because of your participation in a social movement, your goals may be less self-interested then defense attorneys are kind of used to or are trained to assume.
So your, you know, first most likely outcome if the fed doesn’t just go away after hearing from your lawyer is that they issue an arrest warrant. And otherwise, another possible outcome is that you get a grand jury subpoena. And so we’ll talk about grand juries in a little bit.
Okay. And then… So one of the things that I try to talk to you about with people is to remember, don’t like, like, really, really don’t lie or tell the truth, especially to feds?
Like, it’s always best to just never lie or tell the truth. Like, I mean—
It’s extremely dangerous to talk to federal law enforcement.
It’s extremely dangerous to talk to federal law enforcement because it is a federal offense to lie to federal agents. And they’re, you know, trained to elicit things that can be construed as lies. And if you do lie to them and aren’t able to correct, like whatever material misrepresentation of fact, then they can use that as leverage against you to try to get you to cooperate in their investigation. Because they’ll say, well, you lied to us and that’s a five year mandatory minimum. But if you cooperate, we won’t prosecute you for the perjury or for the material misrepresentation.
Right. Which includes like—
So the best thing is to just say nothing, to say, “I’m represented, leave your name and number, and I’ll have my lawyer call you.”
Which includes even stuff like, if they ask about your roommate, don’t say like, “Oh, she doesn’t live here.”
You know, just literally just the like, shut—you know, ask for a card or whatever, right?
Yeah, no matter what they say, no matter what they say to you: “Leave your name and number and I will have my lawyer call you.”
Okay. And then at that point, they call the hotline, and everything works out well, from then on.
I cannot anticipate the behavior of police and prosecutors.
Ah, interesting. Okay.
But I will say that typically, in my experience, things work out less badly if you call a lawyer. Yeah. Than if you talk to federal agents on your own.
Is there from a legal point of view—a lot of the advice that’s going around right now in social movement circles that I tend to appreciate is the idea that if you get visited federally, there’s no reason to keep that to yourself.
No, absolutely not.
Because they know they visited you, so…
And letting people know that you got visited I think helps make people paranoid and then make bad decision—no, um, help people like be aware of their own risks.
Here’s the thing, state repression exists 100% of the time. Sometimes you’re fortunate enough to get a reminder.
Yeah. That’s so dark. Is that the note we’re ending on?
No, it’s okay. It might be the note we’re ending on.
Oh, I’m so sorry.
Well, thanks for being on and we’ll try and have you on in the future when you have a chance to talk about grand juries. But for now it seems like police and federal agents seem to be the primary things we’re dealing with, at least at this moment. So.
Yeah, in most parts of the country, that’s the case. I think that might change.
In the coming months, but yeah, we’ll see.
Thanks so much for listening. If you enjoyed this episode, then please tell people about it. Actually, also write down the NLG federal defense hotline number, which is 212-679-2811. And it’ll be in the show notes. But you know, write that shit down. I guess, keep it by your door. God, what a dark time. But, you know, that’s a thing. And so if you enjoyed listening to this episode, please tell people about it. Please tell people about it on social media, please like and comment and review and subscribe and do all the things that tell algorithms to tell other people to listen to it. And also just, you know, tell people in person. That’s been happening more and more, and it’s really heartening to see. It makes the effort of this worth it. And also this week is the first week that we have transcription that’s coming out alongside the episode and I’m very proud of that and very excited about that. And that’s I’ve been able to hire someone to do the transcription who is a single parent and certainly could use the work and that’s thanks to y’alls support. If y’all want to support financially, you can. You can support this podcast by supporting me directly on Patreon. My Patreon is patreon.com/margaretkilljoy. And if you back me there, then there’s all kinds of zines and music and various things up there. And also, if you make less money than I do, like, if you live off of less money than I make on Patreon in a month, don’t back me on Patreon unless you really want to but, you can just message me and I’ll get you all of my stuff for free. Because that’s the way that money should work. And as much as money should—money really shouldn’t exist—but that’s completely beside the point. In particular, I would like to thank Chris and Nora and Hass the dog, Kirk, Willow, Natalie, Sam, Christopher, Shane and The Compound for making this episode and the show possible. Yeah, that’s all I got. Stay as safe as you can. Actually, you know, there’s one thing that I want to focus on, there’s like something that that most that really gets at something where, you know, what matters is courage. And courage is not—this is my own words of it or probably some shit I stole off a meme on the internet or something—but courage is not the absence of fear. It’s the overcoming of fear. And in order to stay safe, we need to stay brave. The bunker mentality is the cowards mentality. I should stop recording now. Have a good week.