Since last Saturday, Philadelphia has seen daily widespread protests, with thousands taking to the streets to oppose police brutality after the killing of George Floyd by a Minneapolis officer last week.
You have the right to protest. “People should exercise that right,” said the American Civil Liberties Union of Pennsylvania’s deputy legal director, Mary Catherine Roper.
But you could still get arrested. “The thing that people don’t necessarily understand is, the First Amendment doesn’t protect you from being arrested if you are blocking the street or engaging in property damage. There are things that are against the law, and they are still against the law if you are doing it for a protest reason.”
If you are arrested at a protest, try to stay calm — you have rights. Here is what you need to know.
When heading out to a protest, Roper said, it may be wise to take some precautions.
“Because your belongings will be taken from you [if you are arrested] and you won’t have a phone, it might be handy to write the number of an attorney or a family member on your arm,” she said. That way, you can still get in touch with important contacts if necessary.
You may also want to tell a family member or neighbor you are going — especially if you have children. As Roper said, if you are arrested, you could be held for a long period of time.
And don’t forget, she added: “Eat something before you go.”
When being placed under arrest, you should not physically resist even if you think the arrest is improper or you are innocent, said civil rights attorney and University of Pennsylvania Carey Law School senior fellow David Rudovsky.
“If the officer is intent on bringing you in, and it turns out to be improper, you get remedy later,” he said. “You can’t see a judge in that moment, and the police have the power at that point.”
Jules Epstein, a professor and director of advocacy programs at Temple University’s Beasley School of Law, said “defenses get raised later, after you are removed from the scene” — and fighting back physically in the moment could result in additional charges. Another reason not to resist, Roper said, is your own safety.
“Once an officer has laid hands on you, unless you are literally trying to defend yourself from a violent assault by covering your head, resisting only causes the officer to escalate the force being used,” she said.
If you are approached by police and they ask to search you, it is within your rights to not give your consent. But if you are arrested, police do not need a warrant because the search is no longer a question of consent under what is known as a “search incident to arrest.”
If you are arrested, Epstein said, police are allowed to do an initial search of areas like your pockets, backpack or purse, and wallet — essentially anything “within grab area.”
But police generally cannot search electronic equipment like cell phones or computers without your consent, and need a warrant from a judge to proceed, Rudovsky said. “It is unlikely that they would get a warrant to search your phone if you were a participant in a protest,” Roper said. “That’s where you should just say no.”
While many people expect to be read their rights when arrested, police do not have to give the “Miranda warning” at the moment of arrest, Epstein said. But police do have to read you your Miranda rights, named after the 1966 U.S. Supreme Court case Miranda v. Arizona, before questioning or interrogating you.
“Don’t believe what you see on TV,” Roper said.
But if you’re under arrest and the police want to interrogate you, an officer must inform you that you have a right to remain silent, that anything you say can be used against you in a court of law, that you have a right to have an attorney present during questioning, and that a lawyer will be appointed to you if you cannot afford one. However, Rudovsky said, many protesters probably won’t get to that point in their arrest.
“With a demonstration arrest, it is unlikely that someone will seek to interrogate you,” he said.
Should you find yourself being arrested, Rudovsky advises, “do not say anything.”
“You are not going to convince the officer or detective not to charge you,” he said. “Nothing you say is going to prevent that arrest. You can ask, ‘Why am I being arrested?’ But I wouldn’t go much further than that.”
Roper said that when asked, you should also give your name and address, because if you refuse, “you are going to spend a lot more time with police,” which is something you should try to minimize. If questioning goes further, she added, you should ask for an attorney.
“I generally suggest being polite to police officers when they have you in custody,” Roper said. “You should pay attention and say, ‘I am not going to answer questions without an attorney present,’ other than the basic booking stuff.”
When you are released from police custody, Roper recommends you find legal help to figure out how to proceed if you are facing charges. It is also wise, she said, to not go around talking with others about your case.
What if you can’t afford a lawyer? Some lawyers are organizing to help represent demonstrators. There are also groups, including the Up Against the Law Legal Collective, that connect activists with attorneys who can provide free help, said Roper.
“Do not talk to anybody about the circumstances that led to your arrest before talking to your criminal defense attorney,” she said. “Give your lawyer a chance to give advice about whether that is a good idea before you put a bunch of stuff out on Facebook.”
Additionally, Epstein said, you may want to gather evidence that could support your defense, such as cell phone videos of your arrest. If you were injured, he added, you should seek medical attention and take photographs to document any injuries.
If you feel your rights have been violated, or you were subject to misconduct, you could also consider filing a complaint, said Rachel E. Lopez, an associate professor in Drexel University’s Kline School of Law. While you should talk to a lawyer first, she said, options there include contacting the Police Advisory Commission, the Office of the District Attorney’s Special Investigations Unit, the Police Department’s Internal Affairs Bureau, or pursuing civil action.