Americans have a constitutional right to assemble “peaceably” in protest of government action. The definition of peaceably might seem self-evident. But the line between peaceful and disruptive can be blurry, especially when large, mass protests take place. And what a protestor believes is peaceful conduct could be seen by police as disruptive and dangerous. In a large protest, you could cross over to the unlawful side in more situations than you might think.
On one end of the spectrum, it’s clearly unlawful to destroy or damage property, break into and steal from businesses, physically injure someone, or riot or incite violence. (Learn more about these crimes in Looting and Vandalism Criminal Penalties.) But on the other end of the spectrum, what does it mean to engage in disorderly conduct or disturb the peace? How might you find yourself on the end of those charges? It can also be a crime to violate a curfew order, disobey an order to disperse, trespass on private or public property, block a street or highway, or obstruct an officer’s duties.
Common Criminal Charges Resulting From Protesting
Below are general definitions and penalties for charges often associated with protests. State and city laws differ greatly, from the elements of a crime to the penalties. Review your state or city’s laws for the applicable offenses and penalties in your area.
Disorderly Conduct or Disturbing the Peace
States typically categorize disorderly conduct or disturbing the peace as any behavior that unreasonably interferes with the rights of others or is likely to cause other people alarm, anger, annoyance, or an increased likelihood to engage in unlawful activity.
These definitions cover a broad range of conduct, including:
- blocking traffic or a pedestrian sidewalk (without a permit)
- creating conditions that could harm others
- refusing to obey a police order to disburse, or
- shouting threats or “fighting” words that are likely to provoke an immediate violent reaction.
The crime of unlawful assembly generally involves a gathering of people who disturb or threaten the public peace or intend to commit an unlawful act (such as a riot or looting). Refusing to leave an unlawful assembly when ordered by police is also a crime. If damage to property or violence is involved, a person could be charged with rioting.
Interfering or Obstructing the Police; Resisting Arrest
Some states have separate laws for interfering or obstructing a police officer, firefighter, or ambulance crew engaged in performing their official duties. Disobeying police orders or not allowing emergency crews to access an area could result in criminal charges.
It’s also unlawful to resist an arrest. Some states allow a person to use reasonable force to resist an unlawful arrest, but even so, resisting arrest is not usually a good idea. It can result in serious injuries or worse if the situation unravels.
Blocking or Obstructing a Public Right of Way; Trespass
Unless protest organizers obtain a permit to block off certain streets, a protest that ends up blocking streets, highways, or pedestrian sidewalks is unlawful. Some states or cities have a separate law for this offense, while others cover it under more general disorderly conduct or public nuisance laws.
Criminal trespass involves entering onto property knowing you’re not authorized to be there or remaining on property after being told to leave. It applies to both private and public property. A sign indicating the area is closed or a property owner asking you to leave the premises is enough notice to indicate you’re trespassing.
Governors and mayors often use their emergency powers to issue curfews to preserve public safety and order during riots. Curfew orders typically go in effect when public safety is at issue, such as riots involving violence, property damage, or arson. Generally, the government must provide widespread notification of the curfew and clearly delineate where the order applies and when. These emergency orders may specify the penalty for a violation in the order or refer to a criminal statute.
Penalties and Consequences
Criminal penalties will vary depending on where you live. In many states and cities, violations for the above crimes result in misdemeanor penalties. Misdemeanors typically carry a maximum sentence of up to one years’ jail time and a fine. Felony penalties could apply if the unlawful act results in bodily injury to someone or property damage (in which case, the charges could also be raised to rioting, looting, or criminal property damage).
Even though a misdemeanor might not seem like a serious charge, going through the criminal justice process is not simple. If a mass arrest is involved, you could be held in zip ties awaiting transport to the jail, and the booking process could leave you in jail for hours. Depending on the situation, you could also sit in jail a couple of days waiting for a bail hearing.
Sometimes after a mass arrest, prosecutors drop the charges. But if the charges stick, you might have to pay for a private attorney if you don’t qualify financially for a public defender. A conviction can result in jail time, probation, community services, fines, and fees. And a criminal record, even a misdemeanor, can make it difficult to qualify for loans, housing, employment, and professional licenses.
The rights of protestors and the government’s right to control protests often conflict—on the streets and in the courtroom. In some cases, the law goes too far in suppressing protests’ constitutional rights, and in others, the police can go too far in enforcing the law.
In many states, the crimes listed above have clashed more than once with First Amendment rights, due process rights, and other constitutional protections. Crimes like disorderly conduct or disturbing the peace have been challenged as unconstitutionally vague (meaning you can’t tell from the law what actions are prohibited) and overbroad (by stomping on First Amendment rights to peacefully assemble). Courts have also reviewed challenges to curfew orders as unconstitutionally infringing on the right to assemble and protest the government.
Generally speaking, the government has broad authority to control crowds for public safety purposes. They can impose rules on when, how, and where protests can take place, as long as those rules are reasonable, narrowly tailored, and serve a legitimate purpose. They can’t impose restrictions that are discriminatory, based on the content or views of protestors, or unreasonably suppress constitutional rights. And police cannot use excessive force or brutality when arresting someone.
Talk to a Lawyer
If you are charged with a crime arising out of a protest, it’s important to speak with an attorney. An attorney can help you navigate the criminal justice system, evaluate your case for possible defenses, and fight to protect your constitutional rights. Even if the charges are dropped or you’re not charged, you might want to speak with an attorney if you think the police violated your rights by using excessive force or employing unlawful tactics during a protest.