Your Rights When Detained or Arrested at a Protest

Learn what might happen when police stop or arrest you while you’re protesting, how you can best assert your rights, and what should happen after you’ve been taken into custody.

By , Legal Editor
Updated May 10, 2021

Political demonstrations can range from a handful of people politely holding up signs in front of city hall to massive, sustained protests that have the potential to transform a city and a nation—but may include breaking laws, from disorderly conduct to felony riot. Whether you intend to commit civil disobedience or expect to follow the letter of the law at a demonstration, you should be prepared for the possibility of being stopped or arrested by law enforcement.

Being prepared includes knowing your rights—and when to assert them—as well as knowing what should and shouldn't happen when police stop you from protesting and take you into custody.

The Source of Your Rights When Dealing With Law Enforcement at Protests

Law enforcement, as an arm of government, may not violate your First Amendment rights to free speech, assembly, and petition for "redress of grievances." But all rights have some limits, and police may arrest you when you cross those limits. (Learn more about what police can arrest you for at protests.)

Once you're interacting with law enforcement, at a protest or anywhere else, your most critical rights come from the Fourth Amendment—which protects you from unreasonable search and seizure—and the Fifth and 14th Amendments—which guarantee the right to due process of law before being deprived of life or liberty.

Over the years, courts have interpreted these fundamental constitutional principles to establish guidelines for what police should and shouldn't do. Those guidelines range from the relatively straightforward (like reading your Miranda rights) to the murkier and unsettled (like when police use of force is excessive).

When Police Detain You at a Protest

Police may briefly stop and detain you if they have a reasonable suspicion that you've committed a crime. In many states, it's a crime if you fail to identify yourself to the officer on request. Otherwise, you don't have to answer any questions, including questions about where you were born or your immigration status.

You also don't have to consent to a search—including a search of your electronic devices—but officers may conduct a frisk (or pat down) of your outer clothing if they suspect that you have a weapon. Don't fight if police go beyond that; just say clearly that you aren't consenting to be searched (which could help you in any future criminal proceedings.)

Ask if you're free to leave. If the answer is yes, say that you're leaving and walk away. If the answer is no, ask if you're under arrest.

When a Stop at a Protest Becomes an Arrest

Sometimes it's obvious when you've been arrested: An officer restrains you with handcuffs or zipties and says you're under arrest. Other times, it's not that clear when a detention becomes an arrest—especially in a chaotic scene at a protest. It may happen when cops order you to stay in one place for more than a brief period of time.

Once you've been arrested, police must give you a warning about your Miranda rights. They may legally search you at this point. If they believe your phone contains evidence of a crime (such as photos or video), they may take and keep it. You don't have to unlock your phone, although some officers might try to force you to do so with your fingerprint or other biometric unlocking function (a good reason to turn off that functionality and take other steps to protect your electronic devices before going to a protest).

The distinction between arrest and detention matters because law enforcement must have probable cause to make an arrest—and if there wasn't probable cause that you committed a crime, any evidence found through a search might be thrown out of court in subsequent criminal proceedings.

Resisting or Evading Arrest at a Protest

Some state laws allow you to resist arrest in self-defense if police are using unreasonable force or if the arrest is unlawful. But resisting law enforcement is a big risk. Depending on the circumstances and your state's laws, resisting or even fleeing arrest could be a felony. (And it could subject you to more police violence.)

Whether you believe the arrest is lawful or not, it's almost always best to cooperate with the officers and get legal help to fight the charges later.

When You're Taken Into Custody

As the police should inform you when you're arrested, you have the right to a lawyer. If you can't afford one, you have the right to an attorney appointed by the government. Depending on where you live, this could mean a public defender or a private attorney appointed by the court to represent you. (Unfortunately, in some states and counties, public defenders have nearly impossible caseloads, and appointed attorneys may not have experience in criminal defense.)

In almost all states, you should be allowed at least one local phone call. If you call a lawyer, authorities may not listen in on the call.

You should be released from custody unless a judge has decided that there was probable cause for your arrest. The probable cause determination, which is often combined with arraignment, generally must happen no later than 48 hours after your arrest (or within 24 hours in some states, like New York). Otherwise, it could be an illegal detention in violation of your Fourth Amendment rights.

Note that, as a part of sweeping anti-protest legislation enacted in 2021, Florida law (H.B. 1) requires that protesters who've been arrested for certain crimes (including unlawful assembly) must be kept in jail until their bail hearing.

Getting Legal Help

Often when there have been mass arrests at protests, prosecutors drop the charges after the protesters have sat in jail for a day or two—or they never file formal charges in the first place. Even though you've suffered negative consequences, there usually isn't much you can do about that. However, if you weren't released within the legal deadline or you were held in deplorable conditions, you may want to speak with a civil rights attorney about the possibility of filing a civil lawsuit against authorities.

Otherwise, if you're still facing criminal charges and you don't already have a lawyer, you should contact a criminal defense attorney as soon as possible. A lawyer who's experienced in this area can help protect your rights, including by seeking to have the charges dismissed if the police violated your constitutional rights.

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