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 in part to a series of private lawsuits and oversight actions by the DC Council in the early 2000s after a serious of police abuses at public demonstrations. DC also experiences a very high volume of demonstrations in comparison to other cities, which has led DC police agencies 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.
- The arrestee is first put through the booking process (search of person and property, fingerprinting, mug shot, background check)
- Booking may take place at or near the scene of the arrest in makeshift processing areas or at one of the department’s local stations
- Booking could be completed in an hour or two or take several hours during a mass arrest, including spending long periods of time in a transport vehicle
- The police will take control of all items a person has in their possession after an arrest and give them a receipt that lists all of those items
- The police then make a decision on how to proceed with thecase
- Release the arrestee without filing charges
- Allow the arrestee to post and forfeit
- Give the arrestee a citation to return to court
- Order the arrestee held overnight in the DC MPD Central Cell Block
Factors that May Affect the Police Response
- The jurisdiction in which the demonstration will occur (federal, local, foreign)
- This determines which laws apply to the demonstration and which police department(s) are likely to respond to the demonstration
- The level of training, the institutional biases, and the unwritten policies and procedures differ widely between the local and federal police 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 for the event and allocate the necessary resources
- The identity and political affiliation of the demonstrators
- Race, gender, sexual orientation, age, religion, etc.
- Historical experience suggests the police respond more harshly to left-wing demonstrations and have a particular fear/dislike of anarchist or black bloc groups
- The tactics of the demonstrators
- Presence of any weapons or weapon-like items
- Property damage or destruction
- Obstructing the activity of the police (including resisting arrest)
- The presence of illegal or prohibited items
- Weapons or anything that looks like or could be construed to be a weapon (guns, knives, pepper spray, etc.)
- Illegal drugs (includes cannabis on federal, foreign, and multi-jurisdictional property)
- Items prohibited by the organizers or property owners
- Unexpected events
- This could include provocations from counter-demonstrators, an emergency event, or unauthorized splinter groups using tactics the police are not expecting
Knowing Your Rights v. Exercising Your Rights
Police officers are trained to take control of every situation, including by force if necessary, and will often escalate the situation when they face noncompliance with their orders. Therefore, the best practice to try and keep yourself safe is to respond as calmly as possible and not challenge the authority of the officer.
The local and federal police agencies in DC typically give multiple oral warnings before detaining or arresting individuals at a demonstration. (In most cases, they are only required by law to give one warning but usually give more than one as a matter of practice.) Therefore, anyone who does not want to risk arrest should listen carefully to and comply with all warnings given by law enforcement.
Many legal rights organizations (including the NLG) distribute flyers or business cards with tips on interacting with the police, including warnings to never consent to searches or answer any questions without first speaking to an attorney. This advice is good to know, but simply knowing your rights does not mean you will feel comfortable exercising those rights in the moment. Police interactions can be intimidating or even traumatizing and a person might choose to cooperate with a police request in order to end the interaction as quickly and safely as possible. However, below are some things to keep in mind when deciding how to navigate a police interaction.
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.” However, the officer may refuse to tell you, in which case walking away could result in separate legal liability.
If the police ask to search you, respectfully say “I do not consent to any search.”
You should never consent to anything while in police custody, 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 even if it doesn’t it will provide a legal basis to move to suppress the search if the case goes to court. Once 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.
Photographing and Videotaping the Police
The First Amendment gives any person the right to videotape and photograph DC law enforcement officers who are in a public place and engaged in their official duties as long as that person does not interfere with the officer or violate any other law in the process. The question of what constitutes “interference” is answered by that officer in the first instance and will be reviewed by the court if charges are filed. The Metropolitan Police Department has passed a specific regulation (General Order 304.19) which defines the circumstances under which it is okay to videotape and photograph MPD officers.