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Your Rights When Detained or Arrested at a Protest

Posted on March 30, 2022 in Defense Strategies

Protesting is a fundamental right under the First Amendment of the U.S. Constitution. However, protests can go wrong and become riots or unlawful assemblies – sometimes resulting in the detainment or arrest of protesters. In some cases, the police have even been known to unlawfully detain protesters for any reason or no reason at all. Learn how to defend your rights if you get arrested at a protest.

The Right to Take Pictures or Video

If you witness someone else getting arrested at a protest, or if you can still use your phone after being detained for protesting, you have the right to take pictures and record video footage, within certain parameters. If you are lawfully present in a public space, you have the right to photograph anything in plain view. If you’re on private property, you must follow the owner’s rules for recording. A police officer may not confiscate your phone, view your photographs or delete anything without a warrant. If recording is interfering with legitimate law enforcement operations, however, the officer may order you to cease. If you do get arrested, the police can confiscate your phone but should not delete any data.

The Right to Be Free From Unreasonable Search and Seizure

Just as the First Amendment protects your right to protest, the Fourth Amendment protects you from unreasonable search and seizure. This means that the police cannot search your person, vehicle or property – or seize anything – without a warrant, probable cause or your permission to do so, unless you’ve been arrested for a suspected crime. 

The Right to Remain Silent

It is important not to resist an arrest in any regard. Remain calm and do not physically resist or attack a police officer under any circumstances. At the time of your arrest, pay attention to your Miranda rights. The officer must tell them to you. Failing to do so is a violation of your rights. Your Miranda rights include the right to remain silent and the right to an attorney. 

Use your right to remain silent and do not answer any questions asked by the person detaining you. You lawfully do not have to answer any questions asked by a police officer except to give your name. The police can use anything that you say against you in a court of law. Instead of talking to the police, politely state that you are using your right to have an attorney present before you talk. 

The Right to Due Process of Law

Due process of law refers to what has been established as the lawful and proper way to arrest, detain and try a suspect. You have the right not to be deprived of life, liberty or property without due process. In simple terms, this means that the government must follow procedural rules when arresting or detaining you at a protest. This law prevents law enforcement officers from impacting your life in an abusive way; the police officers must respect all legal rights that you are owed, even when making an arrest.

Due process of law means that a police officer must have probable cause to arrest you at a protest. If you are detained or pulled aside by the police, ask if you are free to leave. If so, walk away. If they say no, ask if you’re under arrest. To place you under arrest – or require you to stay in one place for more than a brief period – the police must have a valid reason. Without a valid reason, you may have a case of false arrest or unlawful detainment.

The Right to an Attorney

In many cases, people who are arrested for protesting are released from custody later the same day. If a judge determines that there was probable cause to arrest you, however, you may be detained overnight or longer while you wait for an arraignment hearing. If you are booked and brought to a precinct, you are allowed one phone call. Use this call to contact a criminal defense lawyer. Authorities legally cannot listen in on a call to an attorney. Hiring a Phoenix defense lawyer right away after being detained or arrested is the best way to protect your rights and avoid the worst possible penalties connected to criminal charges.