Protesting and Unlawful Assembly: Your Rights and the Law

The first amendment to the U.S. Constitution – the leading law of the land here in the United States – protects the right of citizens to peacefully assemble. However, that doesn’t give people the right to do anything they want under the guise of a legitimate and legal protest.

Limitations to the Right to Assemble

While one has the right to protest, there are some limitations you should know about. For example, there is no first amendment-based right to disregard a direct order from a police officer — even if you believe the order is illegal. You must comply.

People who are protesting also do not have the right to cross or occupy private property. Moreover, many localities have policies covering public places like parks. These newer laws were a response to New York City’s Occupy Wall Street movement during the fall of 2011. Nowadays, many towns and cities outlaw overnight stays and the blocking of others from passing through public spaces.

Blocking traffic is also illegal, with no protection under the first amendment. In such situations, police may make arrests – though they must weigh the delicate balance between taking protesters into custody versus opening up a street to vehicles.

It’s important to note that New York’s counties have different laws pertaining to protests, but New York City is – and always will be – among the more lenient with protestors. Historically, even when arrests were made and summons issued, courts would dismiss the charges, unless the protestor’s actions were tantamount to an egregious crime.

Potential Charges and Consequences

Depending on the circumstances, you may be charged with anything ranging from a simple violation to a serious felony. For example, failing to disperse or blocking traffic are both considered violations in New York City. A violation is not a crime. So even if you are convicted of or plead guilty to a violation, you will not have a criminal record.

All misdemeanors and felonies are considered crimes. You may be facing a more serious misdemeanor charge if you:

  • Assemble with the intent to engage with others in a violent manner 
  • Violate a curfew
  • Incite a riot
  • Prevent law enforcement from performing their duties, such as making arrests
  • Resist arrest
  • Trespass on private property

If you assault someone causing them serious injury, assault them with a weapon, or injure an officer, firefighter, nurse, or paramedic, you can be charged with a felony. 

Entering a building with the intent to commit a crime is also a felony. This would include looting or even anyone outside of a store with smashed windows.

The maximum sentences in New York State are:

  • Up to 15 days in jail and a $120 court fee for a violation
  • Up to 3 months in jail and a $250 court fee for a Class B misdemeanor
  • Up to 364 days in jail and a $250 court fee for a Class A misdemeanor

If you are facing a felony charge, there’s the potential for both a lengthier jail sentence and steep fines. You will absolutely want to hire an experienced attorney. Even a misdemeanor conviction can be enough to disrupt one’s life, so talk to an attorney to discuss your options.

What to Do if You Are Arrested for Protesting

If you are participating in a protest that draws the attention of law enforcement, there are some things you can do to minimize the likelihood of being charged with a misdemeanor or felony. My advice is don’t do anything that could constitute resisting arrest. 

Police are within their rights under the law to ask you for ID, your name, address, date of birth, and if you have any pressing medical needs. If you are asked these things, it’s best to comply so you come across as being fully cooperative. Moreover, don’t lie to law enforcement because – if found out – it can lead to additional charges being filed against you. Lastly, contact a criminal defense attorney to discuss your case and options for resolution.

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