XRNYC Know Your Rights Guide: Protest, Police, and Arrest

Note: this is a general guide to your rights. It is not legal advice and does not create an attorney-client relationship. Laws and procedures vary by city and state. Consult local activists and attorneys for more precise information relevant to your area. You can download a PDF of this guide here.

Your constitutional rights

To start off, it’s important to familiarize yourself with some basic rights guaranteed by the United States Constitution. Knowing these will help you to protect yourself against police abuse and to more effectively fight for climate justice.

First Amendment (freedom of speech and assembly)

• The First Amendment protects many things. Activists often censor

  themselves more than they have to.

• Limits to the First Amendment: some things that are not protected include

  • Slander or defamation: Knowingly lie about someone and cause them economic harm

  • Obscenity

  • Incitement or advocating the use of force: have to express an immediate or imminent intent to do violence

  • True threats of violence toward a person or group: unprotected if intended to place the target at risk of bodily harm or death

  • Fighting words: unprotected if it is likely to incite an immediate breach of the peace. Has to be a direct personal insult directed at the person who hears it

  • Dangerous speech: you can’t yell “fire” in a crowded theater

• The First Amendment applies in traditional public forums (like sidewalks or parks), but is limited in quasi-public forums like college campuses and even more so on private property such as a mall.

Fifth Amendment (right to remain silent)

• Activists should not answer questions from police. Even if you are detained and arrested, you have the right not to answer questions. You do not have to answer questions unless you’re in a court situation and a judge compels you to do so.

• Anything you say can and will be used against you and against other people.

• In order to exercise this right, say: “I am going to remain silent. I would like to speak with a lawyer.”

• If you start answering questions, you can stop at any point. If you find yourself talking, stop, and say “I am going to remain silent. I would like to speak with a lawyer.”

Fourth Amendment (unreasonable search and seizure)

• Law enforcement has to follow procedure to search or seize your belongings

• Most common way: police get consent

  • Silence can be consent

  • Assert this right by saying: “I don’t consent to this search”

Note that you have these rights simply by being in the United States, regardless of citizenship status. However, arrest may negatively impact your immigration status; consider consulting with an attorney prior to engaging in civil disobedience if this is a concern.

Interactions with police

Now that you know your basic rights, here are some tips for exercising them in your interactions with police.

General advice

• Remain silent

• Don’t lie to police

• Assume you are being recorded

• Keep your hands visible

• Don’t touch police officers or equipment, accessories, dogs, vehicles, etc.

• Stay around other people

• After interaction: write down your own narrative of everything that happened. Include officer names and badge numbers if possible. Trial can happen over a year later. You don’t want to rely on the police officer’s version of events.

There are three levels of interactions with the police. Knowing which level you are at will help you to know how to react:

• Casual conversation (basic level)

  • If officer starts asking you questions, say “Am I being detained?”

  • If officer says no, respond, “I don’t wish to speak with you,” and move away from the officer.

• Detention (police want to ask you questions or restrict your movement)

  • To detain you, police need a reasonable articulable suspicion that you have committed a crime or are about to commit a crime.

    • If you’re breaking the law, police will have a reasonable articulable suspicion.

  • If an officer says you’re being detained, ask them to tell you why.

    • If an officer says you’re being stopped for one thing, but they give a different reason later, this could be used in court.

  • If a cop is detaining you, pushing you around, or searching you, say “I don’t consent.”

  • If you are detained, police can prevent you from leaving the area but cannot take you elsewhere.

  • If you are detained, you can be required to give your name, address, and date of birth. You are not required to give other information such as your immigration status, country of origin, or social security number.

  • If you are detained, an officer can pat down outside of your body and your wingspan. This includes looking in bag/backpack if it’s within your reach.

    • You can request same-gender officer for pat-down search. This may or may not be honored.

    • Police may search people even though they don’t have the right to do it. Fight it later. Say: “I don’t consent to this search.” If possible, say it where a legal observer can hear you.

• Arrest

  • Police can arrest you if they have probable cause that you have committed a crime (in protest situations, this might be easy for them).

  • If you’re arrested, police are allowed to search you and make you remove any valuables (e.g. jewelry) (including piercings).

    • Search must be done by an officer of the same gender.

  • If you make it hard for them to arrest you, such by hiding your hands or by going limp, this could be the basis for a charge of resisting arrest. This depends on the jurisdiction; check local laws.

Practical considerations related to protesting

How do these rights play out in practice? Here are some pointers for protecting yourself and your movement:

Before the protest

• Form affinity groups: these are groups of people who are participating in the action in various ways and will support each other. People who are engaging in civil disobedience and risking arrest should have someone who knows their plan, keeps track of their belongings, updates their family or other humans, knows any medical issues, etc.

• Know the plan for jail and legal support.

• Fill out a jail support form (here’s the NYC form).

Familiarize yourself with these key roles:

• Police liaison: The police liaison is empowered to speak with police on behalf of the group. They should try to figure out what the police are doing and keep open a line of communication. Make sure your group, or at least the decision-making body for the group, knows who the police liaison is. Other people who are not the police liaison should not talk to the police.

• Jail support people: Jail support people are people who are not risking arrest and who are designated to help track who is arrested and get people out of jail. One of the jail support people should store these forms (ideally off-site, away from the action) and should be able to get them to attorneys if necessary.

• Media spokespeople/communications people: Make a plan for getting information out about the action. Designate people to execute the communications and media plans. Also designate spokespeople who will speak with media. This should be different from the police liaison. Make sure there are some people in this role who are not risking arrest--you don’t want to be without a spokesperson once arrests happen. Make sure participants know who the spokespeople are, so they can direct media to them, unless you want everyone in the group to feel empowered to speak with media.

• Bail: Make sure you know the plan for whether people will be bailed out, whether some people will be bailed out, or whether people will opt to stay in jail until arraignment (the first court appearance).

At the protest

• Bring:

  • ID

  • Cash for cab fare: if you’re arrested, you could be released at any time of the day or night

  • Medication: must be unexpired and clearly marked with the same name as on your ID

  • Comfortable clothes/layers (jail is often cold)

  • Closed-toed shoes

  • Sunscreen

  • Snacks, water

  • Some situations: protective eyewear/bandana, earplugs

• Don’t bring:

  • Weapons

  • Controlled substances

  • Valuables, including jewelry

  • Some jails will take your shoelaces and belts

  • Anything you don’t want police to have (you can hand things off to support people before you get arrested)

    • Consider not bringing your entire wallet, just what you need.

    • Cell phones: Consider leaving them at home or making a plan to pass them off to a support person. Turn off Touch ID (keep locked with passcode). Consider deleting sensitive data.

Legal support

• Write the relevant legal hotline on your body in permanent marker somewhere out of sight. The NYC National Lawyers Guild hotline is 212-679- 6018, and here’s a list of NLG hotlines around the country.

• If there are NLG legal observers present — they’re the ones with the bright green hats — identify them when you arrive. Part of their job is to write down the names of people who are arrested. Be prepared to shout out your name as you’re being arrested.

  • This is important: jail support needs to be able to track you.

Arrests

• Pay attention: During a protest, depending on the situation, you may or may not have an opportunity to disperse. Cops are supposed to give a dispersal order before they move in and arrest people. However, this does not always happen. In fact, in some cases, cops “kettle” protesters or make it so they can’t leave even if they want to, and then arrest everyone.

• If you are arrested, you will likely be taken to a police station/jail. The location depends on where you are arrested; try to find out the likely location ahead of time. Consult this graphic on the arrest process in NYC.

• Police may cite and release protesters. This means they arrest you, put your hands in zip ties, and bring you around a corner or out of sight. After a long time, they release you and give you a notice to come to court. They will tell you not to go back to the protest.

• If you are taken into custody, you will be fingerprinted and searched and your photo will be taken. This processing takes a long time.

• Call your attorney or legal hotline when you can.

• While in custody:

  • Do not discuss the action or pre-action organizing or other organizing while in custody. Assume you are being recorded. Be careful not to implicate anyone else.

  • If you are injured while in custody: photograph the injury if possible. Request medical attention. You may have to ask repeatedly.

  • Medical issues: they may not let you use medication you bring in. You need to alert jail authorities as early as possible and be persistent. Be prepared to give doctor’s info, prescription info, etc. Document as much as possible.

  • Length of time in jail varies depending on factors including:

    • Where you’re held

    • Whether you’re getting bailed out or remaining in jail until you’re arraigned (this is your first official court appearance; see below)

    • How many people you’re arrested with: the bigger the group, the longer it will take.

    • When you do the action: if it’s on a Friday or weekend or holiday, you could have to wait to be arraigned during normal business hours.

    • In NYC, the average time from arrest to arraignment is 19.5 hours.

Arraignment

• An arraignment is your first court appearance. It is not a trial, but there is a judge and you are entitled to a lawyer. If you don’t have your own lawyer, a public defender will be provided.

• The arraignment is used to announce the charges against you and to determine whether bail will be set or you will be released on your own recognizance. Judges and lawyers may also discuss the charges and the evidence for them, and in some cases may seek to resolve the case right there. Arraignments are not typically used to determine guilt or innocence.

• Factors that may influence your bail and whether or not you’re released on your own recognizance:

  • Criminal record

  • Seriousness of the charges

  • Open warrants, including in other states

  • Ties to the community

• It’s best to let lawyers do the talking during arraignments, as it’s largely a procedural affair: you’ll have a chance to argue for the justice of your cause later.

• Always enter a not guilty plea.

  • You can change this plea later, but there’s little to no advantage to pleading guilty at this point.

Release

• You will likely be released on bail or on your own recognizance.

• Minors have the same rights as adults, but cannot be released on their own recognizance. Minors must be released to a parent or guardian. Parents can designate someone else as the guardian; they should put this in writing and the minor should carry it with them.

• Ahead of time, think about where you’re going to be released: you could be released at any time. You could also be released in a weird location (e.g. out the side door of the building).

• Jail support people should plan ahead to:

  • Find out where arrestees are taken

  • Physically go there so that when people are released, they are greeted

  • Bring food/water/warm clothes

  • Arrange transportation

  • Update family/friends of people arrested

Court appearances

• Show up to court appearances! It can cause you many more problems if you miss court appearances. You do not want this hassle.

• If you have a lawyer, stay in touch with them

• Defendant solidarity is really important: discuss legal goals and plans with your group ahead of time.

• You will need to decide whether to accept a plea deal or go to trial

  • This is 100% your decision.

  • If you choose to accept a plea deal, you will plead guilty or no contest.

Some specific considerations for engaging in civil disobedience

• While everyone can engage in civil disobedience, the process (from arrest to jail procedure to potential charges to impact of a record) impacts people differently. Factors like race, gender, class, and age will often affect how people are treated.

• You may want to check in with an attorney, or at least let your jail support people know ahead of time, if there are issues around: immigration status, gender identity, if you’re a minor, if you have warrants out here or in another state, or if there are other circumstances that the police may be able to use against you.

Potential consequences of civil disobedience

• The type of charges varies depending on the action. Many mass actions result in misdemeanor charges such as trespassing, which are often resolved without jail time and sometimes without creating a criminal record. Higher- risk actions may carry more severe charges. Results of a plea deal or conviction can include jail time, fines, and/or probation.

• Consider speaking with a local attorney and/or experienced activists before you engage in civil disobedience to learn about the likely consequences.

• Probation: note that in some cases, as part of your sentence, you can face probation. Standard requirements include not breaking the law again for a certain period of time. If you have conditions, make sure you know what they are and what happens if you violate them.

• Restitution: This is different from a fine and involves paying someone back for costs that they say your action caused. Public entities such as police departments sometimes file restitution requests for, e.g., the time that police officers spend responding to a protest. Corporations file restitution requests for many things, often under the heading of lost profits. These requests are often wildly inflated and poorly documented, and activists should be prepared to challenge them in court in a timely fashion.

This information was prepared by  Climate Defense Project.

Want more resources? You can check out the Civil Liberties Defense Center’s Know Your Rights  slide deck, video presentation, and flyer about the three levels of police encounters.