DIGIPIX

The circumstances that landed Princeton professor and author Cornel West and activist-clergyman Osagyefo Sekou in the St. Louis County jail on October 13 could have been avoided. But that would have defeated the point.

West journeyed to Missouri from his teaching post at Union Theological Seminary with the explicit intention of ending up in the fluorescent-lit intake center surrounded by several dozen other protesters. The group had refused to disperse from the Ferguson Police Station, where they were protesting the lack of indictments for officers who killed unarmed black men. In small waves, the protesters were arrested, processed at the county jail, examined by medical professionals, fingerprinted, and released, usually within several hours and usually without a bond. A few weeks after Sekou was released, he penned an open letter to fellow clergy calling on them to show solidarity with the protesters.

Sekou’s letter drew on Martin Luther King, Jr.’s 1963 “Letter from Birmingham Jail,” which had called on clergy to change their deafening silence or racist condescension towards the issue of segregation. King had explained that the goal behind non-violent civil disobedience was “to create a situation so crisis-packed that it will inevitably open the door to negotiation.” Going to jail for civil rights carries a certain romance even among the most straight-laced, at least when the arrestees are safely in the past and have names like King, Mandela, or Gandhi. But in the urgent now, people rightfully hesitate. The retelling of those events often leaves out the painstaking strategizing that went into nonviolent disobedience and the steps that activists needed to take to avoid annihilation. Were it not for teams of lawyers who had bail funds set up in advance, civil rights groups of the 1960s would have languished in jail without recourse.

Being arrested is always a risk of nonviolent civil disobedience. But that does not discourage people from engaging in direct action with Black Lives Matter; instead, protesters are learning to be aware of the risks associated with their advocacy and to formulate a strategy to minimize the harms arrest can have on the movement and its demonstrators.

Led Off in Zip Ties: Unforeseen Arrests

Unlike Sekou and West, the majority of early Ferguson protestors did not plan on going to jail. As Antonio French explains to the HPR, he was arrested before it became popular within the movement. French, the alderman for Ward 21 of the City of St. Louis, documented the early days of unrest in Ferguson, when snipers studded rooftops and police in armored trucks clashed shields with protesters. He tried to keep peace at the demonstrations and made contact with the officers in charge to clarify rules of engagement and avoid provoking them. Neither that nor French’s elected position stopped officers from pulling him out of his car to arrest him while he was videotaping a police line advancing through smoke after the 9 p.m. curfew.

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In the early days before Missouri governor Jay Nixon established the Unified Command to relieve Ferguson police from their peacekeeping duties, the understaffed department took full advantage of their ability to arrest people and hold them for 24 hours without charge. According to French, this became their way of clearing crowds. At the time of his arrest, the arresting officer gave French a blunt explanation of why they had put him in zip ties: “For not listening.”

The police commander on site sets the line between arrest and freedom. Most of the Ferguson protesters on October 13 received misdemeanor charges like disturbing the peace or third degree assault, which can be issued for something as small as brushing against an officer, as per the Missouri Revised Statutes. “There’s a line for the law no matter what,” said Sgt. Brian Schellman, a spokesman for the St. Louis County Police Department (part of the Unified Command) to the HPR. “Police try to use that discretion to let people voice their opinion as much as possible, but at some point when you cross that line the police have to do their jobs as well.”

That line varies from department to department and from city to city. In Cambridge, Massachusetts, police have mostly focused on protecting demonstrators and directing traffic, making no arrests in connection to Black Lives Matter protests. Police elsewhere have taken greater liberties in making arrests when the demonstrations take place on private property. This was the case when the Ohio Student Association (OSA) and others staged a Christmas Eve die-in at a mall near the Wal-Mart where police killed John Crawford last summer. (Crawford was killed while holding a toy gun.)

MarShawn McCarrel started working on the Black Lives Matter demonstrations through the OSA, which had been organizing around the issue of police brutality long before Crawford’s death in Beavercreek, Ohio. As protesters left the mall at the officers’ orders, McCarrel shouted at an officer who pushed a young woman that wasn’t moving fast enough. Then another officer grabbed him and pulled him away from the crowd. McCarrel’s frustration grew as the officer started joking about Crawford’s death and the protest.

“Because at that point, I’m in zip ties; I’m powerless, especially as an African American male. I have no power in that situation. It was really traumatic,” said McCarrel, a resident of West Columbus, to the HPR. “Where I come from, jail is [either] something that you’re going to go to, or you’re terrified of it. I never wanted to go to jail.”

McCarrel and eleven others ended up in the Fairborn jail with Virgil Vaduva, who was documenting the mall demonstration when he was arrested within the police line. He and others were charged with criminal trespassing and obstructing official business, but Vaduva says if he didn’t have two friends documenting his arrest the charges might have been more serious. “Three guys grabbed me, and they were all pretty much lying about how it happened,” he explained to the HPR, adding that one of the three police reports accused him of resisting arrest and attempting to flee the scene, neither of which he did. A video-streaming app called Bambuser, used repeatedly during the Arab Spring, helped defend him against the added charges.

High Risk and Consequence

When individuals try to escalate the protest beyond the level of confrontation established by the organizers, they sometimes forget the risks posed to people of color in such situations. Especially for people with varying immigration status, getting arrested can turn into a nightmare that reaches beyond a few hours in a holding cell. Escalation to that level is a privilege that not all have.

Vaduva is now a naturalized U.S. citizen, but when he was on a student visa, he would have been far more cautious around protests for fear of being deported. “That’s probably the worst visa to be an activist because you have no civil rights whatsoever,” he said. Organizers who escalate a demonstration without looking after their more vulnerable members put them at risk, but ACLU lawyer Carl Williams told the HPR that this shouldn’t deter immigrants from activism. Six months ago, he supported a group that blocked the front entrance to South Bay Correctional Facilities. Two-thirds of the demonstrators were in the United States without documentation, but they were protected because they had a plan, legal support, and knowledge of what to do if arrested. He said they had more extensive formal training in nonviolent direct action than most of the Black Lives Matter demonstrators. Yet training does not diminish the gravity of undocumented youth participating in civil disobedience. Students who pushed lawmakers to pass the DREAM Act in May and July 2010 faced deportation charges after being arrested during sit-ins.

High school students who want to get involved in direct activism also face questions about their futures. The Black Lives Matter movement was the first arena in which Cambridge, Mass. student Gina Geese felt she could be openly angry about the issues facing black people in America. Geese joined her first demonstration after the Michael Brown non-indictment, then teamed up with other youth organizers to stage walkouts from Cambridge Community Charter School, Somerville High School, Cambridge Rindge and Latin School, and Prospect Hill Academy, where she is a junior.

“The risk came to me the day of: the risk of getting in trouble with my mom, getting suspended from school—which didn’t happen. I didn’t think about those things because I was so pumped,” said Geese in an interview with the HPR. She hopes to attend Northeastern University for pre-law, but until her acceptance letter arrives she is hesitant to put herself on the police line again.  However, Marlyn McGrath, Harvard’s director of admissions, told the HPR that no formula exists for considering an applicant with an arrest record. Harvard asks to know the details of arrests, including how the related demonstrations fits into the applicant’s interests and other activities.

“We have certainly admitted people who had been involved in various kinds of protests, and often those events have enhanced our positive understanding of the applicant’s interests and his or her commitments,” McGrath said. “By contrast, a candidate who seemed to have a habit of dropping into every protest event he or she could find, on all sides of every question, managing to be arrested, might well make members of our committee wonder about the significance of that record.”

Strategizing for Jail

The Black Lives Matter demonstrations are now more strategic than in the early days after Michael Brown’s death, when scores of protesters were picked up on a weekly basis. These new approaches have been grounded in new infrastructure formed within groups to prepare their protesters for effective civil disobedience and protect them with bail and legal representation when things go awry. Several groups have even set up premeditated and intentional arrests, as in the case of Sekou and West.

McCarrel credits a detailed plan of action with keeping the OSA energized and well-funded. The OSA raised a bail fund through social media, drawing on members and pre-existing partners. When members were arrested, the organization quickly met the $150-per-person bail, and all but one of those jailed were out within five hours, according to Vaduva. A lawyer offered to represent them all pro bono when they go to court in March. In French’s opinion, getting arrested is the worst part, the ensuing legal process is a nuisance, and the jail process is the easiest. The OSA tried to prepare for each.

Geese and her co-organizers incorporated the National Lawyers Guild’s recommended nonviolent direct action guidelines to fit the Cambridge protests. They elected to avoid arrest and adhere to nonviolent principles, then posted the ground rules on their Facebook page. Even when they blocked a major intersection in Boston, no one was arrested. They asked their peers to buddy up with someone to ensure no one got separated and picked up, and they also agreed to not speak with the police unless legally obligated, a strategy Williams says can protect arrested protesters—and anyone else—from self-incrimination.

Williams believes that constant and intentional solidarity among small groups of people is critical for protection. Successful organizers plan for the potential individual costs of civil disobedience by setting standards and procedures beforehand, inviting legal observers who can document police action, creating a bail fund, encouraging people to carry at least $40 in cash if they need to bail themselves out, leaving home anything that can be perceived as a recreational drug or weapon, securing cellphones with passwords (although police cannot legally search them), and carrying a form of state identification for the jail intake process. They also assess the risk for people participating in the demonstration and take their concerns into consideration.

For the civil rights movement of the 1960s, specific laws were far more explicitly unjust than the laws and political structures in place today. That movement gained the moral high ground by virtue of its participants going to jail for breaking such overtly discriminatory laws. Going to jail had symbolic importance, as the public was swayed by the shocking images of young people dragged away on illegitimate charges.

Today, protesters and participants in the Black Lives Matter movement face the struggle of imparting similar symbolic meaning and significance in their civil disobedience. In general, the arrests around the demonstrations have been for acts that have attempted to reclaim public space or overcome police barriers, like during the Boston protests this winter. With some exceptions like the I-93 blockade in January, protesters have not made going to jail an intentional part of the plan. The end goal is not showing how much one is willing to put on the line by getting arrested—what Williams calls a “macho” impulse—but rather, as he says, “challenging systems of oppression and risking arrest while doing it.”

Disclosure: The author has been active in the #BlackLivesMatter protests in the Boston community.

This article has been updated from an earlier version (2/24/15).

Image Credits: Creative Commons

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