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As protests sweep the nation in response to the death of George Floyd in Minnesota, it’s more important than ever to know your rights and the potential violations that an officer may attempt to charge you with while attending a protest in New York or New Jersey. This brief article will provide you with an overview of your rights when attending a protest as well as the violations and related penalties that you could potentially face while protesting.

Your Rights

Freedom of speech and the right to peacefully protest are some of the most strongly protected rights in our nation. As the ACLU explains your rights are strongest when protesting in what is known as a “traditional public forum.” 

Public forums are considered to be places generally open to the public and not operated by a private business or housing a government entity, and include places like streets and parks. Certain other public property like plazas in front of government buildings can also be considered public forums, so long as the protest does not prevent access to and from the building.

Anyone lawfully protesting in a public forum also has the right to photograph anything within their view. Permits are not required to protest in public forums although police may ask you to move aside to allow others to safely move through the area. However, a large public gathering such as a rally may require a permit from the local government.

Furthermore, as CNN explains, police or local government officials can ask you to disperse from an area, but if you are peacefully protesting there is no legal requirement to comply unless a curfew has been initiated and is currently in effect.

When Can A Protest Be Restricted

Many arrests occur when a protest or protesters violate certain restrictions. While everyone has the right to public assembly, there are reasonable restrictions that government bodies and police in New Jersey can put in place. This includes: 

• Limiting the protest to certain times and places. 
• Rules regarding the use of sound amplification equipment. 
• Requiring advanced notice of the demonstration and a permit.

A person who violates reasonable time, place, and other restrictions—for example, by blocking traffic on a roadway not cordoned off by police for demonstration purposes—can be ticketed or arrested. 

Potential Liability

There are a number of statutes in both New Jersey and New York that an officer could potentially charge someone with while attending a protest. Just because you are charged does not mean that you are guilty, and if you are charged it’s recommended that you immediately seek legal assistance to understand your rights and options. Here is a list of some of the possible charges available to an officer, along with a brief description of the violation and its penalties.

Penalties in New Jersey 

NJ 2C:33-1: Riot, Failure to Disperse

• Description: This statute prohibits any individual from grouping up with four or more individuals with the purpose of committing a crime, preventing official action or planning to use a firearm or other deadly weapon. Essentially if you attend a protest with the intent of committing any crime or refuse a lawful order to disperse you may be found guilty of this.
• Penalty: Commission of this offense will result in being charged with a disorderly persons offense (also known as a misdemeanor in other states) which can result in fines, jail time and a criminal record.

NJ 2C:29-1: Obstruction of Justice

• Description: This statute prohibits any person from purposely preventing a public servant from lawfully performing their duty. There are a variety of situations where an officer may attempt to charge an individual attending a protest with this offense, including preventing the officers from enforcing curfew and interfering with the arrest of an individual by officers at the protest. Even if you believe that the arrest is not justified, it’s better to allow the officers to perform their duty and to fight the case afterwards with an attorney.
• Penalty: This can be considered an indictable offense (or felony) with very serious penalties including high fines and significant jail time if it can be proven that an officer was obstructed in their persecution of someone believed to be committing a crime. In all other scenarios, it is still considered a disorderly persons offense (or misdemeanor) which will still carry with it fines, jail time and a criminal record, though these penalties will be less severe than those issued for an indictable offense.

NJ 2C:29-2: Resisting Arrest

• Description: As the title suggests, this statute will apply to anyone resisting arrest, either by force or flight from police officers. It can also include a situation where the person being arrested creates a substantial risk of physical injury to the officer or any other person in their attempt to avoid arrest. Importantly, even if the officer was acting unlawfully in making the arrest, this fact is not a defense to resisting arrest. Once again it’s best to allow the officer to continue with the arrest and fight the case with an attorney afterward.
• Penalty: If the person charged with resisting arrest used force or created a substantial risk of harm to the officer or another individual this will be considered an third-degree indictable offense (also known as a felony) which will carry with it significant fines and potential jail time. In all other cases it will be considered a disorderly persons offense, which again will also potentially result in fines, jail time and a criminal record.

Violation of an Emergency Order: Directive No. 79

• Description: A person is guilty of this order if the governor or another qualified public official declares a state of emergency, orders evacuation of an area, and the individual refuses to evacuate. As of 6/5/2020 Governor Murphy has extended the State of Emergency throughout New Jersey for an additional 30 days due to the Covid-19 pandemic.
• Penalty: As a disorderly person’s offense, anyone guilty of violating this order will be subject to a fine of up to $1,000 and/or six months in jail.

NJ 2C:18-2: Burglary

• Description: A person is guilty of burglary in New Jersey if they are found to have purposely entered a structure that was not open to the public at the time of entry with the purpose of committing an offense. This also applies to anyone trespassing on property where notice prohibiting trespass is clearly posted. Anyone attending a protest in New Jersey should be aware of their surroundings and try to remain in the “traditional public forums” discussed above to avoid running into any issues related to this offense.
• Penalty: Burglary is an indictable offense (or felony) in New Jersey and the severity of penalties will depend on whether there was any violence or threat of violence involved. Either way it is likely to result in jail time, significant fines, and a criminal record.

NJ 2C:17-3: Criminal Mischief

• Description: A person is guilty of criminal mischief in New Jersey if they knowingly or recklessly damage the property of another through the use of fire, explosives or other dangerous means. This can include the use of fireworks and even the spraying of graffiti.
• Penalty: Criminal mischief is considered an indictable offense (or felony) of either the third or fourth degree in New Jersey depending on the nature of the violation, and it can carry with it the potential of jail time and fines. If the violation was purely an act of graffiti, it’s possible that the offender can pay to have the graffiti removed and perform community service instead of receiving a more significant penalty.

NJ 2C:20-3: Theft by Unlawful Taking

• Description: This general provision of the code covers the intentional taking of any property with the intent to deprive the owner of said property.
• Penalty: Depending on the item’s value, theft can either be a disorderly persons offense (equivalent to a misdemeanor) or an indictable offense (or felony) in New Jersey with penalties ranging by degree of the offense and including several years of prison time and fines in the thousands of dollars or more.

NJ 2C:12-1b(5)(a): Assault of a Police Officer

• Description: This specific provision of the code relates to assault on a police officer that is in uniform and performing their duty as an officer. 
• Penalty: Assault is an indictable offense (or felony) in New Jersey with penalties ranging by degree of the offense and potentially including significant jail time and fines.

New York Penalties 

NY Penal Law 240.20(5), 240.20(6): Disorderly Conduct

• Description: In New York it is a violation of the disorderly conduct provisions of the penal code to obstruct vehicular or pedestrian traffic as well as failing to comply with a lawful order of the police to disperse. 
• Penalty: Committing this offense is considered a misdemeanor in New York can include fines of up to $250 and up to 15 days in jail as well as a criminal record.

NY Penal Code 195.05: Obstructing Governmental Administration

• Description: New York’s obstruction code broadly states that anyone that intentionally impairs the administration of law or any other governmental function will be guilty of this offense. If you believe that a police officer is acting unlawfully it is still best to allow the officer to perform their duty and to contest their actions after the fact with your attorney.
• Penalty: Violating this offense is considered a Class A misdemeanor resulting in fines, jail time and a criminal record. The penalties for this crime can increase based on the seriousness of government function that has been impaired.

 NY Penal Code 205.30: Resisting Arrest

• Description: Anyone that attempts to prevent a police officer from arresting themselves or another person will be found guilty of this offense in New York. If you believe that an arrest is unlawful or unjustified, it is again advisable to let the officer perform their duty and to fight the arrest afterward with your attorney.
• Penalty: Resisting arrest is considered a Class A misdemeanor in New York and can result in fines, jail time and a criminal record.

NY Executive Order Regarding Disaster Preparedness: Section 24(5)

• Description: This broad directive makes it a violation to knowingly disregard any emergency order issued by a qualified government official. Currently, Governor Cuomo has extended the State of Emergency throughout New York due to Covid-19 through June 7th.
• Penalty: Violation of this order in New York is considered a Class B misdemeanor and can result in fines, jail time and a criminal record.

NY Penal Code 140.20, 140.30, 140.35: Burglary

• Description: In New York burglary is committed when a person knowingly enters or remains unlawfully within a building with the intent to commit a crime therein. Anyone attending a protest in New York should be aware of their surroundings and try to remain in the “traditional public forums” discussed above to avoid running into any issues related to this offense.
• Penalty: Burglary is a felony in New York and will result in significant fines and jail time as well as a criminal record. If the person charged is armed or causes any injury to another the penalties will be more severe.

NY Penal Code 145.00: Criminal Mischief

• Description: A person is guilty of criminal mischief in New York if they intentionally or recklessly damage property of another person, damage an abandoned property, or prevent someone from communicating a request for emergency assistance. Spraying graffiti can be considered a violation of this offense.
• Penalty: In most cases criminal mischief is considered a Class A misdemeanor with penalties including fines, potential jail time and a criminal record. However, it’s important to note that this crime can be elevated to the level of a felony if the property damaged is owned by the government and in which case the fines and jail time will be significantly greater.

NY Penal Code 155.05: Larceny

• Description: New York defines theft in its penal code as various levels of larceny, depending on the value of the items obtained and the nature in which they were acquired.
• Penalty: The penalties for larceny in New York vary based on the value of the items taken, ranging from a Class A misdemeanor for items valued at less than $1000 all the way up to a Class B felony for Grand Larceny when items obtained exceed $1 million in value. Conviction for a Class A misdemeanor can result in fines of up to $1000 and up to one year of jail time. For the higher level offenses considered felonies, penalties can include up to 25 years in prison and significant fines. In all cases the conviction will result in a criminal record.

New York Penal Code 120.08: Assault on a Police Officer

• Description: This section of the NY code lays out enhanced penalties for committing an assault on a police officer or other public officials like firemen and EMTs. A person will be found guilty if they are proven to have caused serious physical injury to a police officer with the intent of preventing them from performing their duty.
• Penalty: Assault on a police officer is considered a Class “C” Felony in New York and can carry with it serious penalties including significant jail time and fines, as well as a criminal record.

What to Do When Being Arrested at a Protest

The most important thing to do when it seems arrest is imminent is to remain calm. It is normal for a person to panic, flee, resist, or yell, but these things only make matters worse. In addition to doing your best to stay calm, be sure to do the following:

• Ask what law you violated. If the officer can’t or won’t say, ask clearly if you are free to leave. 
• Do not answer questions. 
• If the officer is using force—justifiably or otherwise—do no resist. This can result in being charged with Resisting Arrest, in addition to any other charges. 
• Do not consent to a search of your person or belongings.
• Do not give DNA samples. 
• Do not unlock your phone for police. 
• Likewise, do not delete any photos or videos taken during the protest—these may be evidence needed to prove one’s innocence (and cops know that). 
• If possible, get the name and badge number of the arresting officer(s). 
• Say as little as possible. Even innocent people can end up being charged because they said the wrong thing. 
• Ask to speak with an attorney. 

Conclusion

Our nation has always stood as a place where its citizens have freedom of speech and the right to peacefully protest. Peaceful protestors and the change they stand for are vital to our nation’s continued progress and reputation throughout the world. 

Anyone who believes that their right to protest has been unjustly curtailed through government action or arrest should immediately contact an attorney to discuss their options. At Rosenblum Law we support you, and we’re here to help.