As an American, you have the right to organize or join together with fellow citizens in protest and peaceful assembly. Though this First Amendment right is not absolute, the government cannot prohibit a public assembly at their own discretion. Time, place, and manner restrictions put in place by government institutions are permissible as long as they are “justified without reference to the content of the regulated speech, are narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the information.” In other words, the government can require a permit for assembly be obtained in advance and can impose special regulations and additional requirements for assemblies that take place near a major public event. If you are protesting in Charlotte, it’s important to know your rights and what to do if you’re charged.
It is not, however, legal for governments and police to violate your right to assembly through mass arrests, illegal use of force, criminalization of protests, and other means that impede free public expression.
It is crucial that you know your rights and know what to do if you are arrested while protesting or assembling.
What are my rights?
You have the right to assembly and protest in “traditional public forums,” like streets, sidewalks, parks, and other forms of public property, as well as in front of government buildings as long as you are not blocking access to the building or interfering with other purposes the property was designed for.
If you are on private property, you are subject to any rules the property owner sets. If you are on your own property or have the consent of the property owner, the government may not restrict your speech.
While time, place, and manner restrictions to the right to assembly exist, you do not need a permit to march in the streets or on sidewalks as long as you are not obstructing car or pedestrian traffic. If you do not have a permit, however, police officers can ask you to move to the side to let others pass or for safety reasons.
What do I do if my rights have been violated?
The American Civil Liberties Union recommends you take the following steps if you believe your right to assembly is being infringed upon:
- When you can, write down everything you remember, including the officers’ badge and patrol car numbers and the agency they work for.
- Get contact information for witnesses.
- Take photographs of any injuries.
- Once you have all of this information, you can file a written complaint with the agency’s internal affairs division or civilian complaint board.
What if the police issue an order to disperse?
Law enforcement can not break up gatherings, protests, or assemblies unless there is clear and present danger of riot, disorder, or other immediate threats to public safety. If a dispersal order is issued, the police must provide a reasonable opportunity to comply. If you fail to comply with the dispersal order, you could be arrested and charged with a crime.
What do I do if I am arrested?
If you are participating in the protests there is a chance that you could be arrested by local law enforcement. If you are arrested by law enforcement you are afforded a series of rights. It is important to stay calm and keep your hands visible – don’t argue, resist or obstruct the police, even if you believe that your rights are being violated by the arrest. You may point out that the First Amendment protects your right to assembly.
Police may pat down your clothing if they believe you have a weapon, and they may search you after arresting you. You do not have to consent to a search of yourself or your belongings; doing so may affect you later in court.
Police may not confiscate or demand to view your photos or videos on your phone without a warrant.
You have the right to ask why you are under arrest. Otherwise, we recommend you remain silent and ask for a lawyer. Once arrested, you should be read your Miranda rights. If you have not seen or heard the Miranda protections they are: the right to remain silent, anything you say or do can be used against you in court, you have the right to an attorney, if you cannot afford an attorney one will be provided to you.
The most important aspect of these protections is they must be clearly and unequivocally invoked by the defendant. Clear and unequivocal invocation means that no person could interpret your verbal or nonverbal communication as not wanting to invoke your rights under the law. If you wish to remain silent, be sure to verbally respond to any law enforcement member in saying, “I am invoking my right to remain silent.” If you wish to obtain an attorney and have him/her present when you are questioned by law enforcement (which we strongly recommend), you need to respond by saying “I am invoking my right to an attorney.”
The following statements are examples of statements that do not protect you and will allow for continued questioning by law enforcement:
- “Maybe I need a lawyer.”
- “I don’t think I should say anything.”
- “Do you think I need an attorney for this?”
Do not sign anything or say anything without a lawyer present. If you use your right to call your lawyer, law enforcement may not listen to the call.
What are some charges I may face if I am arrested while protesting in Charlotte?
Even though your right to protest and assemble may be lawful, an unlawful act done during a protest is still unlawful.
Here are some of the common charges you may face:
- Obstruction of traffic: it is illegal to stand, sit, or lie upon the highway or street and impede the regular flow of traffic. This is considered a class 2 misdemeanor.
- Disorderly conduct: it is illegal to engage in conduct creating the threat of imminent violence and to use abusive language that is intended and plainly likely to provoke violence. This is a class 2 misdemeanor
- Trespass: it is illegal to enter or remain on the premises after being asked by the authorities to leave. This is a class 3 misdemeanor.
- Permit violations: protesting without a permit may be a misdemeanor.
- Resist/delay/obstruct and failure to disperse: it is illegal to unlawfully resist, delay, or obstruct a public officer in discharging a duty of his office. This is a class 2 misdemeanor.
- Carrying a concealed weapon without a permit is illegal.
If you believe your right to assembly and protest have been violated or you’ve been arrested for any of the charges above while protesting in Charlotte, call us at 704-512-0606.