Your Constitutional Rights When Protesting & If You’re Arrested in NJ

Peaceful protest is a fundamental right that we embrace. It is a right each of us enjoy under the First Amendment of the Constitution of the United States. In the wake of the death of George Floyd, protests are taking place nationwide. Although in most instances, the protests take place without incident, there have been instances resulting in the arrest of protesters.

If I go to a protest, are there restrictions on me? What can I do, and what am I prohibited from doing? Following is a brief outline of your rights, and what you can expect in the unfortunate event that you are arrested.

What are my legal rights when participating in a protest?

A peaceful protest is lawful and protected by the United States Constitution.

The First and Fourteenth Amendments of the United States Constitution prohibits Federal and State governments from abridging the freedom of speech or the right of the people to peaceably assemble. As we have seen nationwide, peaceful protests are taking place throughout the country.  

The right to assemble is not, however absolute. Federal, State, and local governments can impose restrictions on the time, place, and manner of public assembly, as long as they are justified without reference to the content of the regulated speech and are narrowly tailored to serve a significant government interest.

As a result, governments are not permitted to set rules for public protests based upon the nature of the protest and must reasonably accommodate the time and place of a protest or demonstration. Governments are permitted to set the time and location of a protest. As a result, a protest scheduled in a public park at noon on a Saturday is likely to be lawful, while a protest blocking a highway at 2 am will likely be viewed as a violation of the law.

What are my rights if I am arrested at a protest?

First and foremost, everyone enjoys the right to remain silent when questioned by law enforcement.  That right never ceases and is one that should be exercised unless and until you have had the ability to consult with your attorney.

If you feel you are wrongfully arrested, the law requires you to comply and “grieve later”.  Even when a protester believes that they have done nothing wrong and are being treated unfairly, the law requires that you follow the directions of law enforcement and grieve the matter later. 

If faced with an arrest while protesting the best course of action is to remain silent, calm and cooperate to the best of your ability with police. With tensions and emotions high, failing to do so may result in the filing of additional and possibly more serious charges such as Obstructing Administration of Law and Resisting Arrest. Recognize that the legal process is a process.  You will have an opportunity to defend what you are charged with.     

What can I be charged with if I am arrested?

Criminal charges may be filed when anyone, including a protester, violates the law.

In the event it is alleged that one engages in fighting or tumultuous behavior with the intent to endanger another, or blocks a public roadway, they may be criminally charged. Likewise, if one engages in that conduct or is present, and refuses to disperse the lawful order of one enforcing the law, they could be charged.

Possible charges include:   

  • Failure to Disperse Upon Official Order, contrary to N.J.S.A. 2C:33-b;
  • Obstructing Highways and Other Public Passages, contrary to N.J.S.A. 2C:33-7;
  • Disorderly Conduct, contrary to N.J.S.A. 2C:33-2.

 If one goes on or in property where they are not licensed or permitted to enter, or damages the property of another, they could be charged as follows:

  • Criminal Trespass, contrary to N.J.S.A. 2C:18-3;
  • Criminal Mischief, contrary to N.J.S.A. 2C:17-3.

 In some instances, not involving organized protests, stores and businesses have been broken into and property has been stolen from within. In those instances, possible charges are:

  • Burglary, contrary to N.J.S.A. 2C:18-2;
  • Theft, contrary to N.J.S.A. 2C:20-3.

What do I do after I am charged?

Even minor offenses may result in costly fines and even jail time. A conviction, for even a minor matter, may result in a criminal record that may result in a variety of consequences.   

In the event that a protester is arrested, they should seek legal counsel.  An attorney will review the facts and circumstances of the matter, and the charges and provide advice on defending the matter to get the possible resolution.

If I am arrested, will I need bail?

Prior to 2018, a person charged with an offense had to post bail, cash or a bail bond, before they would be released from custody. Since then, most offenses are charged on complaints that do not require that bail be posted. If you are served with a summons, you will be processed at the police station, notified of your court date, and immediately released. Minor offenses must be charged on a summons.  Click HERE to learn more about pre-trial detention. 

If you have any questions about your First Amendment Rights, your Right to remain silent, criminal defense, Second Amendment or Fourteenth Amendment rights, contact Rosenberg Perry & Associates.