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.
In comparison to most major cities in the United States, the police agencies in DC are relatively tolerant of protests and demonstrations. This is due primarily to a series of private lawsuits and oversight actions by the DC Council in the early 2000s aimed at alleged police abuses in responding to public demonstrations. DC also experiences a very high volume of demonstrations in comparison to other cities, leading the police agencies in DC to create special divisions and standard operating procedures for responding to activities covered by the First Amendment.
That being said, there is always a risk of arrest at a public demonstration or protest, even for those who have no intention of being arrested (see the J20 mass arrest). Below is a list of some of the variables that could affect how the police respond to a demonstration and a discussion of some of the common issues that occur when interacting with the police.
Factors that May Affect the Police Response
- The jurisdiction in which the demonstration will occur (federal, local, foreign)
- Determines which police department will respond and which laws apply to the demonstration
- Police officers from DC law enforcement agencies are generally more tolerant than officers from federal law enforcement agencies
- The level of training, institutional biases, and ingrained culture differs between agencies
- Whether the police were notified beforehand, including through a permit
- The decision whether to notify the police beforehand is a political and tactical choice
- The police are usually more tolerant of permitted events because it allows the police to plan ahead and allocate the necessary resources
- Identity of the demonstrators
- Police behavior (like that of all people) can vary considerably depending on the race, gender, political affiliation, etc of an individual or political group
- The tactics being used by the demonstrators
- Police may consider certain tactics to constitute a level of escalation that requires a harsh response, including property destruction or obstructing the activity of the police
- The presence of weapons, drugs, or other contraband
- DC has very strict weapons law
- DC drug laws are more liberal but the federal drug laws apply on all federal and multi-jurisdictional propert
- Unexpected events
- This could include counter-demonstrators, an emergency action, deviations from the action plan
Knowing Your Rights v. Exercising Your Rights
The best way to stay safe and avoid arrest is usually to try and remain respectful and avoid escalating the situation. DC 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.
Video Taping 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.
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.