In response to planned demonstrations around South Dakota, as part of the "Occupy Wall Street" movement, the ACLU of South Dakota (ACLUSD) has released the following protester advisory. While this advisory gives basic information about the rights of protesters, it should not substitute for specific legal advice. ACLUSD has also produced wallet cards with this information. Email us at southdakota@aclu.org to have one (or more!) mailed to you.
First, it is important to differentiate between protesting with protected speech and using civil disobedience. With civil disobedience you are choosing to break the law, and perhaps be arrested to make a point. You need to be prepared for what happens when you are arrested.
Even though protesters are clearly protected by the constitution, the definition of "peaceful protest" may differ from person to person. Here are some valuable tips on what to do if you are confronted by a police officer or another public official during a protest. If you have an encounter with the police, you can protect yourself and your rights. If you believe that your rights have been violated, please contact an attorney.
Your Rights as a Protester
- What you say to the police is always important. What you say can be used against you, and it can give the police an excuse to arrest you -- especially if you "bad mouth" an officer.
- You are required to provide your name, address, or date of birth to a law enforcement officer upon request.
- You can be arrested for refusing to identify yourself to an officer.
- You do not have to consent to a search of yourself or your car.
Limitations on Speech
- The government can limit speech by imposing "time, place, and manner" restrictions. This is most commonly done by requiring permits for meetings, rallies, and demonstrations.
- The First Amendment does not protect speech that incites violence, is obscene, or is threatening.
- It is a federal crime to threaten to harm the President, the Vice President, or a major candidate for either office.
Limitations on Action
- If you endanger others through the manner in which you choose to protest, you can be arrested. A protest that blocks traffic is illegal without a permit.
- You do have the right to distribute literature, chant, and engage passersby in debate, but you do not have the right to block a building entrance or physically harass people.
- Protesting on private property is not protected by the law.
- Do not interfere with, touch or verbally antagonize the police.
- Avoid carrying any drugs or weapons. If you happen to be arrested you could face additional charges for their possession.
If You Are Arrested
- Do not run or resist. It may result in additional charges.
- The whole process, from arrest to release on bail, should take about 24‐36 hours.
- The police will ask you for basic biographical information and will take your fingerprints and photograph, unless you have been charged with a very minor crime.
- You will then be interviewed by a court agency so that bail can be assessed. You do not have to answer their questions, but giving accurate information will speed the process.
- You can hire an attorney to represent you at the arraignment and present arguments regarding bail.
- The judicial officer will set bail according to several factors (local connections, seriousness of the crime, how many other protesters have been arrested, etc.).
- There are three main types of crimes that you could be charged with. They are, from least to most severe, a minor misdemeanor, a misdemeanor offense, and a felony offense.
If you feel your rights have been violated, write down everything you can remember, including officers' badge and patrol car numbers, which agency the officers were from, and any other details. Get contact information for witnesses.
South Dakota residents who believe their rights have been violated are encouraged to report these concerns to:
ACLU of South Dakota
Attn: Intake Department
PO Box 1170
Sioux Falls, SD 57107
www.aclusd.org |
