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Your Rights While Protesting

The alleged murder of George Floyd has sparked intense protests throughout the country and the State of California.

Everyone knows that the right to protest is guaranteed under the First Amendment to the U.S. Constitution. But do you know what to do if you are stopped by a police officer while participating in a protest? Do you know what your rights are in recording police officers? Can you take a gun to a protest?

We address these questions in this article.

If you are stopped by a police officer…

While police officers do not have a right to infringe on your First Amendment rights, they are entitled to engage in legitimate police operations. Legitimate operations include making arrests for destruction of property, assaults on police officers and/or bystanders, and threats of violence. To that end, police officers can order protesters to stop interfering with legitimate operations.

If you are stopped by a police officer, first ask the officer if you are free to go. If he or she says yes, walk away.

If he or she says no, do not say anything and immediately ask for a lawyer.

While most police officers are respectful of your right to obtain a lawyer before answering any questions, there are a few bad cops who are not. If one of these bad cops tries to badger you into making a statement after you have invoked your right to a lawyer, stand your ground by stating politely but firmly:

“With all due respect officer, I am exercising my right under the Constitution to remain silent and I will not make any statement or answer any question without my lawyer present.”

If you get arrested, do not sign or agree to anything without your lawyer present.

You have a right to a local phone call. If you call a lawyer, the police are not allowed to listen. The police can, however, monitor any communications that are not between you and your lawyer. Therefore, if you call anyone other than your lawyer after you are arrested, do not make any statements regarding the circumstances that led to your arrest.

You have the right to record protests and the police…

You are within your First Amendment rights and California law in recording police officers while they are performing their duties, as long as: (1) you are doing so openly, i.e., not in a surreptitious manner; and (2) you are not interfering with legitimate police operations. Recording police officers from a safe distance is not interfering.

If you get stopped, police cannot take or confiscate any videos or photos without a warrant. Police cannot delete data from your device under any circumstances.

Do not bring your firearm to a protest…

California law prohibits carrying a loaded firearm “in any public place.” (Pen. Code § 25850, subd. (a).)

It is legal to openly carry certain unloaded and registered firearms in a belt holster. (Pen. Code § 24500, subd. (b).) Nevertheless, it is extremely unwise to carry any firearm to a protest.

Even though you may intend to protest peacefully and not use your firearm, every protest has the potential of devolving into a riot in which you are overwhelmed and have your firearm taken from you. Your firearm, in turn, could be used against you, innocent bystanders, or police officers.

Also, as we explained in our last article, a peaceful protest becomes an unlawful riot upon the introduction of, among other things, threats of violence “accompanied by immediate power of execution.” (Pen. Code § 404, subd. (a).) Immediate power of execution, and by extension, unlawful participation in a riot (Pen. Code § 405), is easy to mistakenly presume against anyone carrying a firearm, even a person carrying in full compliance with all other laws.

Have you or a loved one been arrested or cited while participating in a protest?

Dr. Martin Luther King, Jr. said “conditions continue to exist in our society, which must be condemned as vigorously as we condemn riots … Social justice and progress are the absolute guarantors of riot prevention.” To that end, the Coimbra Law Firm encourages all people to stand together, stand up for one another, and do so in compliance with federal, state, and local laws.

If you or a loved one have been arrested or cited while participating in a protest, contact our experienced attorneys right away. Our attorneys have successfully defended clients against accusations of violence, and we are well-versed in what your rights are under the First Amendment.