Demonstrating in DC: An Overview

The following is not intended to serve as legal advice but rather as a reference for information about protests and demonstrations in the District of Columbia. Specific legal questions should be directed to the National Lawyers Guild or a licensed attorney. This information applies only to the District of Columbia. Different laws and practices apply in Virginia and Maryland.

The D.C. police agencies are relatively tolerant of protests and demonstrations. The police agencies have special divisions and policies for responding to protests, they usually give several warnings before making arrests, and in many cases only arresting protesters only as a last resort. This is especially true at events that are well organized, have the proper permits, and have notified the police in advance.

It must be said that there is always a risk of arrest at a public demonstration or protest. Some of the variables that could affect police behavior include participants deviating from the action plan (ex. property damage, disobeying police commands), provocation from counter protesters, or an emergency event happening during the demonstration. In most cases, however, permitted and well-planned demonstrations in D.C. do not experience interference from the police.

It is legal to videotape and photograph police under the First Amendment as long as you do not interfere with their activities or violate any other law in the process. The Metropolitan Police Department has also passed a specific regulation (General Order 304.19) which says it is okay to photograph an MPD police officer in public space when that officer is engaged in official duties as long as you do not interfere with the officer.

The best way to stay safe and avoid arrest is usually to try and remain respectful and avoid escalating the situation. As was previously stated, D.C. police will usually give warnings before making arrests at a protest. Therefore, it is important to pay attention to what the police are saying and to follow their instruction if you do not want to risk arrest. By regulation, MPD officers will usually give at least three warnings before making an arrest at a protest. However, in most cases, they are only required by law to give one warning.

If you are being detained, respectfully ask “Am I free to leave?”

The police can only detain you if they have a legal reason to do so. If you are not being detained then you have the right to walk away. If you are being detained you should tell the officer “I choose to remain silent until I can speak with an attorney.” It is usually not a good idea to speak with a police officer without first consulting a lawyer, even if it means you may have to spend the night in jail before you are given access to a lawyer.

If the police ask to search you, respectfully say “I do not consent to any search.”

You should never consent to anything, particularly a search of your person or property. When an officer asks for you permission to conduct a search, that is usually a sign the officer does not have the legal right to conduct the search without your consent. Refusing consent may not actually stop the officer from searching you but it may provide the basis to suppress the search if the case goes to court. If you have been placed under arrest, the police have the right to search you and your belongings regardless of whether or not you consent to the search.

If the police try to question you, respectfully say “I choose to remain silent until I can speak with a lawyer.”

You should not talk to the police under any circumstances, regardless of whether or not you are under arrest, aside from providing basic information like your name and address. Although there may be some instances where talking to an officer will not cause any harm, remember that one of the jobs of police is to obtain incriminating information that can be used to prosecute persons they believe have committed a crime. Police officers are also allowed to lie to obtain information, which usually involves falsely befriending a person to obtain information. The police may also make false promises, such as ‘Just tell me the truth and you can leave.’ The best thing to do is remain silent until you are released or given access to an attorney, even if that means spending a night in jail before you are given access to a lawyer.

What happens if you are arrested in D.C.?

The first thing that will happen after you are arrested in D.C. is that you will be held in police detention for an indeterminate amount of time. Under normal circumstances, the police take an arrestee to the police station immediately after the arrest to conduct the booking process. However, during events at which there are mass arrests the police may deviate from their normal procedures. This could involve processing arrestees on scene or in makeshift detention areas. It could also involve holding arrestees in the transport vehicle for several hours before transferring them to the police station or booking area.

After the arrest, the police will conduct the booking process, which includes searching your belongings, taking your fingerprints and photographs, obtaining your personal information, conducting a background check, completing arrest paperwork, etc. You may also be asked to provide character references, which is not a requirement but may cause you to be held longer if your refuse to provide the references.

After booking is complete, the police will do one of four things:

1. Release you without filing charges

If you are released without charge you will have an arrest on your record but no conviction. You are not admitting guilt and will not have to go to court.

2. Offer you ‘post and forfeit’

‘Post and forfeit’ is an agreement in which you agree to pay a small amount of money in exchange for the charge being dropped. You are not admitting guilt if you agree to accept post and forfeit and will not have to go to court. Post and forfeit is usually the best outcome unless you want to go to trial.

3. Release you with a citation to return to court at a later date (usually three weeks after the arrest) at which time the prosecutor will decide whether to file charges

Most protesters who are arrested in D.C. that do not qualify for post and forfeit are given a citation. You have to attend your court date in person. There are no exceptions.

4. Detain you in MPD’s central cell block until an arraignment hearing can be held (usually the next afternoon) at which time the prosecutor will decide whether to file charges

If the police detain you overnight, you will be held in the MPD Central Cellblock at 300 Indiana Avenue NW no matter which police agency arrested you. You will be transferred to the DC jail at 1901 D Street SE if the judge decides to keep you in jail after the first court hearing.

What happens if the police take your property?

After a person is placed under arrest, one of the first things the police will do is search and inventory the items in their possession. Most police agencies provide you with a form after the arrest has been processed that lists the property the police took from you. After you are released, you should be able to obtain your property by visiting the police station where you were booked and providing you name and identification. However, if the police determine a seized item is evidence that the prosecutor may want to use as an exhibit during trial, they can hold that item until the case is completely resolved.

What happens if you have to go to court in D.C.?

Arraignment

Arraignment is the first court hearing in the case. At arraignment the prosecutor decides whether to file charges, your lawyer enters their appearance, you enter your plea to the charge(s), and initial discovery is disclosed by the prosecutor to your attorney. The court will appoint an attorney to represent you at the arraignment hearing, most likely a court appointed attorney known as a “CJA attorney”, unless you hire an attorney to represent you at the arraignment. After the arraignment, you will have to hire an attorney if you can afford to do so.

Most importantly, the arraignment is when the judge decides whether to release you or detain your in jail until a later date. D.C. does not use money bail. Instead, the judge will only detain you if she decides you are a danger to the community or a flight risk. If the judge decides to release you, she can set conditions to secure community safety and your return to court – weekly check-ins, drug and alcohol testing and treatment, stay away orders, etc. – which are monitored and enforced by Pretrial Services Agency officers. After the arraignment, the case is assigned to the criminal judge who will oversee the case until it is resolved.

In the D.C., most arraignments are conducted in courtroom C-10 in the D.C. Superior Court (unless federal charges are filed). Citation arraignments are held at 10 a.m. on Tuesdays, Wednesdays, and Thursdays. Arraignments for persons who were detained overnight are held at 1 p.m. on every day except Sundays. A small subset of protest charges fall under the traffic code. Those cases are arraigned in the traffic courts (courtrooms 115, 116, 120) at 9:30 a.m. on Tuesdays, Wednesdays, and Thursdays.

Status hearings

After arraignment, there will be one or more status hearings that will track the progress of your case as the attorneys conduct their investigation. Usually at the first hearing after the arraignment, which is called the initial status hearing, you will be asked whether you want to take your case to trial or plead guilty. If you qualify, you may also be offered a pretrial diversion agreement. If the case is not resolved at the initial status hearing, one or more status hearings will be held until the case is resolved or set for trial.

Pretrial Diversion

Pretrial diversion is a type of agreement in which you agree to do something in exchange for the charge(s) being dismissed. The prosecutor decides whether pretrial diversion will be offered in your case, which usually at a minimum requires you pass one or more drug tests.

The pretrial diversion agreements that are usually offered to protesters are:

Stet Agreement: An agreement in which you agree to stay away from the site of the trespass for a specified period of time. If you complete the agreement, the charge is dismissed. If you fail to complete the agreement, you must either plead guilty or take the case to trial. Generally only available in cases involving trespassing related offenses.

Deferred Prosecution Agreement (DPA): An agreement in which you agree to complete 32 hours of community service within four months and not get rearrested. Other special conditions may apply. If you complete the agreement, the charge is dismissed. If you fail to complete the agreement, you must either plead guilty or go to trial.

Deferred Sentencing Agreement (DSA): An agreement in which you agree to complete 48 hours of community service within six months and not getting rearrested. Other special conditions may apply. If you complete the agreement, the charge is dismissed. If you fail to complete the agreement, you are convicted and sentenced.

Probation

Probation is a period of time during which a person who is convicted of a criminal offense must follow certain conditions imposed by a judge or risk being sent to jail. The prosecutor often will offer to request the judge impose a period of probation in exchange for the defendant pleading guilty. In D.C., the Court Services and Offender Supervision Agency monitors individuals who are placed on probation. A person can only be placed on probation if they consent beforehand.

The primary benefit of probation is that it usually allows a person to avoid serving jail time. However, the primary disadvantage is that it keeps the person within the control of the court often for six months or more. Any violation of the conditions of probation, no matter how trivial, could lead to further court hearings or the revocation of probation and a jail sentence.

Trial

You always have the right to take your case to trial. You do not have to accept a pretrial diversion agreement or plead guilty. In most cases, you will only be eligible for a bench trial in which a single judge will decide whether the prosecutor has proved guilt beyond a reasonable doubt. Your attorney can help you decide whether your case should be taken to trial or resolved through some other means.