The past year has been marked by protests large and small as people have taken to the street across the metro and across the nation, protesting police brutality or workers rights, supporting Black lives and standing beside the AAPI community.
“Protesting is a bedrock of our constitutional democracy,” said Sharon Brett, Legal Director of the ACLU. “It’s the ability to have your voice heard and to make sure that government is working for you. Protesting has a deep, rich history, and it’s a really valuable tool that people have to advocate for social change.”
She said the past year, as countless protests sprang up in the wake of George Floyd’s murder by a Minneapolis police officer, proved “there is a real fear of organized and vocal dissent.”
“It makes people coming out to protest that much more important,” she said. “People have the right to have their voices heard and to demand accountability and demand changes in their government when the government is not working for them.”
Sidewalks, streets and public parks are traditional public forums where protesters have pretty broad rights, she said, though restrictions can be put in place if protesters are blocking traffic, sidewalks, or are on private property.
While Brett said the past year saw many crackdowns on protests and attempts to silence voices, she also noted the lawsuits challenging police conduct at protests that quickly followed.
Local ordinances and laws can influence how people protest, so Brett urged people to be aware of any restrictions in the city where they are either organizing a protest or participating in one. She said it’s also important to know what police can and can’t do during protests.
“Knowing your rights before going into a protest will both help keep you safe and allow you to exercise your First Amendment rights,” she said.
The ACLU lays out the following rights and recommendations for protesters:
PROTESTER RIGHTS
What protesters can do:
If protesters are in a public space lawfully, they are allowed to take photographs of “anything in plain view,” which includes police and government buildings.
Police cannot confiscate photographs or video taken by protesters without a warrant. They also cannot demand to view the footage or delete it.
Protesters are not required to carry permits in order to march on streets or sidewalks as long as they aren’t obstructing car or foot traffic.
What protesters may not be able to do:
Police can ask protesters to move to the side of streets or to sidewalks in order to let others pass.
If on private property, whether protesters are allowed to take photographs or video is the choice of the property owner.
Police can order citizens to “cease activities” if they are interfering with law enforcement operations.
Any violence and criminal activity carried out during a protest is not protected under the constitution.
Any illegal activities, even if peaceful, may be prosecuted.
If a protester believes their rights were violated, the ACLU recommends doing the following before filing a complaint against the department:
Write down the officers’ badge, patrol car numbers and the agency they work for.
Exchange contact information with witnesses.
Take pictures of any injuries
If police issue a dispersal order, the following should happen:
According to the ACLU of Missouri, orders to disperse shouldn’t be given unless there is a riot or an unlawful assembly.
Shutting down a protest through a dispersal order must be law enforcement’s last resort. Police may not break up a gathering unless there is a clear and present danger of riot, disorder, interference with traffic, or other immediate threat to public safety.
Give protesters “a reasonable opportunity to comply, including sufficient time and a clear, unobstructed exit path,” according to the ACLU.
Protesters also have to be told how much time they have to disperse, the exit routes they should take and what will happen if they fail to disperse.
Protesters who don’t follow the dispersal order, even if protesting peacefully, can be arrested.
If detained, the ACLU recommends protesters:
Do not physically resist, argue with or obstruct the officer.
Keep your hands visible.
If an officer stops you, ask them if you are free to leave. If they say yes, “Calmly walk away.”
If you are detained, ask the police officer what crime you are being detained on suspicion of.
If under arrest, do not say anything further or sign any paper work without first contacting a lawyer.
You do not have to agree to a search of your belongings, though an officer could conduct a frisk if they are suspicious you could might a weapon.
In Kansas City, Missouri:
A new protest policy by the Kansas City Police Department explicitly prohibits officers from using less-lethal weapons and munitions, other than chemical agents, “to disperse crowds in the event of an unlawful assembly.” Chemical agents, such as tear gas, are still allowed under the policy.
According to the policy approved in May, officers are required to activate their body-worn cameras during every contact with the public. Video is to be retained for 180 days even if it is not evidence in an investigation.
Under a bill passed in May by the Missouri House, protesters who block traffic would be subject to criminal penalties. The crime of blocking traffic would be an infraction on first violation, a misdemeanor on the second and a felony on the third.
Another pending bill would bar lawsuits against drivers if they hit and injure a protester who “was blocking traffic in a public right-of-way while participating in a protest or demonstration” unless the driver’s action “constitutes gross negligence.”