The right to peaceably assemble and voice your concerns in a public forum is enshrined in the First Amendment to the U.S. Constitution. Indeed, the right to protest is a fundamental aspect of a functioning democracy, along with freedom of the press, religion, and expression in general. In reality—particularly when protests involve civil disobedience, violence, property damage, or other unlawful behavior—there are scenarios where you could be arrested.
If you’re planning to attend a protest, whether it’s spontaneous or was planned in advance, you should prepare for the possibility of getting arrested. We’ll answer questions you may have about what to do if you or a loved one is arrested while protesting, including common arrest procedures, your rights, and best practices.
Why would I get arrested at a protest? Isn’t it my right to protest?
Authorities may restrict the time, place, and manner of a protest. For example, protests typically may not be held during an enforced curfew, on private property, or in a manner that endangers others. Generally, the police are tasked with balancing your right to protest with their responsibility to maintain the peace. Obtaining a permit prior to a planned protest will help ensure that it goes smoothly. It is typically not mandatory, though some states do require permits where the demonstration would block access to a street.
With that in mind, you could be arrested if you protest at a time or place, or in a manner that threatens public safety or violates the law, an official curfew, or some other legitimate restriction. Some protests knowingly violate certain restrictions, such as blocking access to a construction site or forming a human chain around a beloved tree. These are referred to as acts of civil disobedience and participants generally expect to be arrested.
You could also be arrested by virtue of association, such as being part of a protest where just one or a few participants are breaking the law, or through mistaken identity. However, protesters also may be arrested even if they’re fully compliant with the law (or when violence or vandalism is committed by outside provocateurs), only to be released at a later point without charges. Regardless of the circumstances, it is important to know your rights and understand how to protest legally and safely.
What are some things I can do in advance to prepare for the possibility of getting arrested at a protest?
There are a few things you can do before participating in a protest to prepare for a possible arrest, including the following:
- Share the time and place of the protest with a trusted family member, friend, or neighbor
- Memorize or write down the phone number (preferably on your arm, in permanent ink) of an attorney, legal defense organization, or other contact that could assist you if you are arrested
- Write your name and number on any valuable items you would like to have returned in case they are confiscated
- Be sure to carry a government-issued ID (such as your driver’s license), as it will allow you to get out of jail more quickly
- Prepare a contingency plan for minor children, pets, or other responsibilities in case you’re unable to care for them due to an arrest
How do I know whether I’m being detained or if I’m free to go?
If you’re approached or stopped by the police, it is in your best interest to remain calm. Police in many states are allowed to ask your name, but you do not have to answer questions about your immigration status, where you live, or where you are going. If you wish to invoke your right to remain silent, you must say so out loud to the officer(s). That said, you may also ask them what crime you are accused of committing. After they speak with you, ask if you’re free to go. If so, you may rejoin the protest or go your own way.
While the police may not search you without a valid warrant, they may pat you down (through your clothing) if they have reason to believe you’re carrying a weapon. If they say you’re not free to go and detain you, again, stay calm and keep your safety in mind. Remember that the right to remain silent may be to your benefit. Resisting arrest (even if you feel it unlawful) may lead to unsafe outcomes and is a crime in many places.
If you are illegally detained (i.e., they have arrested you without probable cause), then you may file a police misconduct claim or contact a civil rights legal defense organization later.
What will happen if I am arrested?
If the police arrest you, they may read you your Miranda rights (the right to an attorney, the right to remain silent, etc.) but it’s not necessary for them to do so right away. What’s important to understand is that anything you say while detained may not be used against you until after you have been read your rights.
Upon arrest, the officer will put you in handcuffs or a zip tie and search you on the spot. Then, they’ll likely place you in a patrol car or put you into a larger vehicle with other arrestees. Once you’re transported to a local jail, you will be processed (identified, fingerprinted, photographed, and issued one or more citations). The citation will indicate the date on which you’re expected to appear in court.
You should expect to be in police custody for at least several hours, but you may be held in jail overnight or even over the weekend (before bail is set). However, you also may be released on your own recognizance—meaning that you’ve signed a promise to appear at your court hearing—or you may be released without charges.
I have reason to believe a family member or loved one was arrested at a protest, but I haven’t heard from them and don’t know where they are. What can I do?
First, you should contact your local (and state) police and sheriff departments and ask if they are in custody. Some may offer this information on their website. Depending on which agency made the arrest, they could be held in a neighboring jurisdiction. Also, there are several inmate locators available online that gather nationwide information on arrests.
Once you have contacted your detained loved one, you’ll want to ensure that they have legal representation. If they haven’t already done so themselves, you’ll want to contact an attorney, explain the situation, and give them the name of the jail or police station where your loved one is located. Keep in mind that they may have already been assigned a public defender.
If your loved one needs medications while they’re in custody, but jail staff refuse the inmate’s request, then you should contact their physician. You also should make your request to jail staff in writing, including the diagnosis, the type and dosage of the medication, their physician’s contact information, and your contact information.
How does bail work?
Bail is essentially used as insurance for your court appearance as a condition of being released from jail. If bail has been set, you can ask a friend or attorney to post bail for you. But since bail is typically much more than arrestees can afford, you may secure a bail bond instead of paying the full amount.
This involves paying a percentage of the bail amount (usually 10 percent) to the bondsman, who then secures the full amount of the bail in the form of collateral (e.g., the defendant’s car or mortgage, or that of a family member) in exchange for your release. Upon satisfying the terms of the bond (appearing in court at the scheduled time and date), the bondsman will be released from the terms of the bond. The 10 percent cash payment is their fee.
If you fail to satisfy the terms of the bail bond, the court will require payment of the remaining 90 percent of the bail amount. The bail bondsman will sell whatever collateral is put up in order to do this.
If you or your family cannot afford bail, there also have been numerous bail funds set up to support protesters who get arrested.
What should I do (or not do) while in jail after an arrest?
You may be tempted to talk to other inmates or officers while you’re awaiting bail or a meeting with your attorney, but it’s in your best interest to exercise your right to remain silent. Also, you want to ensure that you have legal representation—keep in mind that the police may not listen to your call with legal counsel. If you haven’t already been given the opportunity to do so, clearly state your intention to speak with a lawyer.
You may be stuck there for several hours, so this is also a good time to review the events leading up to your arrest and consider any evidence that may support your position. For example, did the police use excessive force and do you have witnesses? If they were dispersing the crowd for legitimate reasons, were you given an adequate opportunity to leave the scene of the protest?
Will I be arraigned and tried?
It depends. The majority of protesters who are arrested are released with misdemeanor charges (such as disturbance of the peace or obstructing traffic) and are not arraigned, which is the court procedure where you’re officially charged and enter your plea. If a court date is set for your arraignment (usually within a day or so of the arrest) and you enter a plea of “not guilty,” then your trial will begin in a matter of weeks or even months.
What should I do after I am released?
Again, it really depends on your situation. If you have reason to believe the police acted unlawfully, such as using excessive force, planting evidence, or breaking up a peaceful protest under false pretext, then you’ll want to convey this to your attorney and file an official complaint with the corresponding police agency.
You also will want to reach out to potential witnesses who can corroborate your story and gather any relevant photographic or physical evidence that supports your case. For instance, take pictures of any injuries you sustained at the hands of the police as soon as possible. If the injuries are serious, make sure you seek medical attention; this can also help you document any alleged abuses, which could strengthen your case.
Know your rights if you are arrested at a protest
Protests are as American as baseball and apple pie, but police encounters at such events may still be stressful and confusing. Regardless of your actions (or inactions) prior to an arrest, you have certain rights. If you have questions or concerns, or require additional information about your legal rights as a protester, consider asking a lawyer.
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.