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What to Do if You’re Arrested at a Protest: Insights From A Criminal Defense Attorney

What to Do if You’re Arrested at a Protest: Insights From A Criminal Defense Attorney

American history has been driven by the act of peaceful assembly since the very beginning. Along with freedom of press, religion, and expression, the right to protest is a cornerstone of American democracy, protected by the First Amendment of the U.S. Constitution.

Unfortunately, the nature of protesting – which oftentimes includes civil disobedience and property damage – means that there are several contexts in which you could be detained or arrested by the police. If you’re organizing or attending a protest, it’s paramount that you’re not just aware of, but well-versed in your rights as a U.S. citizen.

Your rights are essentially the same whether you’re organizing a protest or simply attending one. As an organizer, you will have to consider whether or not you have the correct permits for the time and place of your event.

There are also certain laws to consider if you wish to take pictures or film any video of the event, which are highly dependent upon the state. Although this certainly isn’t an exhaustive list, here are a few of the most important things to keep in mind when participating in a protest:

9 Things to Remember When Participating in a Protest

1. Your rights are strongest in places that are considered “public forums”.

Public forums include locations like parks and sidewalks. Speaking on public property isn’t as clear cut, but places like plazas in front of government buildings are likely permitted, too. The only times it would not be okay to speak on publicly-owned property are when you’re obstructing access to the building or destroying property.

2. The rules for free speech are different on private property.

Owners have the right to set their own parameters. If you have the consent of the property owner, the government cannot restrict your right to free speech.

3. Photography and video are permitted in public spaces.

While it is legal to document footage through photography and video in public, private spaces are entirely up to the discretion of the property owner.

4. If your event requires street closures, you will need a permit.

Simply marching on sidewalks does not require one, but the police have the right to move protestors off of the street for public safety and to prevent the obstruction of vehicles. If your event is over the size permitted by the city you will need to obtain a permit, including a separate permit if you intend on using certain sound-amplifying devices.

5. If the police order the dispersal of the protest:

The police may only order dispersal if there’s a clear threat to public safety or continued interference with traffic. They must provide enough time for protestors to comply with the dispersal order as well as a clear path of exit.

6. If you intend to take pictures or video:

Police officers may only demand to see pictures or videos with a warrant. This includes the confiscation of your camera or device.

There is a very clear legal distinction between pictures and video. California allows the recording of communication made in public gatherings if the conversation recorded is not considered private or confidential. If you intend to record video of a protest in a state other than California, it’s important to be aware of that state’s wiretapping laws.

7. If you are stopped or detained for taking photographs:

Remain calm. Ask the officer if you are free to leave. If the answer is yes, calmly walk away. If you are detained, ask what crime you are suspected of having committed and remind the officer that the First Amendment guarantees your right to take photographs.

8. If you are stopped or detained while attending a protest:

Always stay calm. Physically resisting or fighting with an officer will provide the grounds to arrest you. You may point out that you aren’t disrupting or obstructing anyone and that you are protected by your first amendment rights.

If you are under arrest, you may inform the officer that you wish to remain silent until you are in contact with a lawyer. Do not volunteer any other information or sign anything without one. If you choose to make a phone call and decide to call a lawyer, the police cannot listen in on the conversation. You are under no obligation to consent to a search. In fact, consenting to a search could affect your situation later in court. This is not the same as a pat-down, which police may perform if they have reasonable suspicion that you may be carrying a weapon. Although police cannot confiscate, delete, or demand to view photographs, they may order any citizen to cease any activities that are legitimately obstructing police work.

9. What to do if you believe your rights have been violated:

Write down as much information as possible, including the date, time, the names and badge numbers of the officers involved, and a short description of the incident. Gather the contact information of as many witnesses as possible and take photographs of any damages or injuries that may have occurred. After you’ve accomplished as much of this as possible, you can move forward with filing a written complaint.

Encounters with the police can be stressful and confusing on a good day, but being in a large crowd of angry or frustrated people can amplify these feelings more than necessary. Regardless of what may have occurred, you have certain rights as a citizen. If you have any further questions regarding your rights or prior interaction with the police during a protest, please consider contacting us at Premier Criminal Defense in San Diego.