As protests supporting the Black Lives Matter movement continue across the country, some attendees could find themselves interacting with law enforcement in ways they never have before.
Before attending a protest, Robert Botnick, owner of The Botnick Law Firm, LLC in Shaker Heights; Susan Gellman, of counsel at the Zacks Law Group, LLC in Columbus; and Jocelyn Rosnick, policy director for the ACLU of Ohio in Cleveland, suggested individuals brush up on their rights in case they find themselves in a legal situation.
As part of the First Amendment, all Americans have the freedom of assembly, the right to practice free speech and to petition the government for a redress of grievances. Protesting tends to involve all three of these ideas.
“You can protest in public spaces, such as streets, sidewalks and parks so long as you aren’t blocking traffic,” Rosnick said. “You can protest without a permit in response to a recent event, but you should check local laws for restrictions. Before conducting a mass arrest, individuals must receive clear and detailed notice of a dispersal order, including how much time they have to disperse, the consequences of failing to disperse and what clear exit route they can follow.”
Rights on paper and how these events play out in real-time can differ greatly.
“The problem is when you have the police who are not prepared for what could happen when you don’t have backup plans in place,” Botnick explained. “Officers have come forward and said they didn’t have proper instructions from supervisors in situations like the downtown Cleveland protests. As we’ve been able to see from so many other demonstrations, people can gather, bring in speakers, march and hold up signs peacefully. That is the perfect example of the right for free speech.”
There are situations where the right to protest can be limited, but these calls are made on a case-by-case basis, which is where a lot of confusion can occur between protesters and law enforcement. Gellman said these limits are usually based on time, place and manner, especially when it comes to safety.
“For example, if you express yourself by throwing a brick in someone’s face, the First Amendment doesn’t protect you from an assault charge,” she said. “But when it is a question of constitutional law, people get messed up because they think in terms of, ‘this is only fair, and we have the right to do this.’ While that is true, it’s not how the Constitution works. The Constitution sets out powers for government and limitations, and the Bill of Rights puts limits on those powers. So, if you ever want to follow the legal reasoning, start with, ‘does the government have the power to ...’ or ‘did the government exceed its power when it did ‘X’, ‘Y’ or ‘Z’?’”
Gellman said limits aren’t on the protesters themselves, it’s on the government’s ability to control or stop them.
“So, unless the government has a really important reason that cannot be served some other way, then the government can’t do something if it interferes with speech or assembly,” she explained.
If you find yourself in police custody at a protest, Rosnick said detainees should contact the Ohio National Lawyers Guild’s Jail Support Hotline at 614-654-6477. She said the ACLU is also supporting bail funds throughout Ohio to help those arrested at protests. A list of these resources can be found at acluohio.org/rights-of-protesters.
Botnick said if a police officer is approaching you, first ask if you’re free to go.
“If they say yes, calmly walk away,” he said. “You don’t have to get in their face and call them names. But if someone is arrested, you were just exercising your First Amendment rights and now you have to exercise your Fifth Amendment rights – the right to remain silent. Don’t say anything else, and ask for an attorney. They can ask for your name, address and emergency information, but can no longer ask what you were doing.”
The Botnick Law Firm is also offering pro bono representation for individuals arrested at protests.
Gellman added, “You have all of your Miranda Rights kick in. And even if they say, ‘No you’re not under arrest,’ but you can’t leave right now, that’s not true. The definition of arrest is that you’re not free to go. So, that is important to know. Just keep being respectful and polite no matter how many times they ask you the same question over and over.”
