This blog post started with the intention of being a “know your rights” dissertation. However, when scouring the web, dozens, if not more, of incredible resources have been created for protestors to know their rights. The ACLU has a wonderful one pager that you can print and read at your leisure. The National Lawyers Guild has several publications in multiple languages, including your rights in the age of COVID-19. If you are planning to protest and be involved in ongoing demonstrations, please take the time to read these resources.
Instead, I will take this time to talk about what comes next, if you are arrested and charged with an offense related to your protests.
First is bail. If the police do decide to charge you, and not simply release you following arrest, you will need to post bail. Sometimes, posting bail will be as simple as signing a paper promising to appear for your court date. This is known as a personal recognizance bond. However, for others, bond will require monetary conditions. If you are going to a protest, especially after a set curfew, it is wise to have someone to call who can post bail for you, or to bring sufficient funds to post bail with you (usually less than $500 for a municipal charge).
Next comes the interesting part. JLongtin Law advises anyone facing charges relating to protest activity to contact an attorney to determine your exact options based on your circumstances, but for many individuals, challenging their case will mean raising a first amendment defense. This begins with filling a motion challenging the finding of probable cause to execute an arrest. Police must have probable cause to believe a crime occurred to arrest an individual. The district attorney has the burden to show that the officer had a valid reason that would lead a prudent individual to believe a crime was being or had been committed. Generally speaking, being in a public place, using protected speech under the first amendment, would not lead a prudent person to believe a crime had occurred.
However, suppose the officer, and by extension the district attorney, assert you were in public in violation of a lawfully issued curfew order. This could be probable cause for an arrest. However, the next step is for your attorney to file a motion to dismiss your charges as unconstitutional. This can either be as applied (the charge in your unique circumstances is unconstitutional) or facially (no reading of the law could be found constitutional). It is likely you attorney will challenge the charges as both.
A facial constitutional challenge to your charges is the most difficult, but perhaps the easiest to understand. It asserts that the law you are charged with is simply not compatible with the text of the state or US constitution. In no scenario could the court constitutionally apply the law, and the law, therefore, should be struct down. Think of a law that outlaws #BLM. This is a obvious example of the government outlawing politically motivated speech and also suggest viewpoint discrimination. In no situation could such a law be applied without violating both the Colorado and United States Guarantees of Free Speech. With teams of lawyers representing the government, it is becoming increasingly difficult to win a facial challenge to a law, but sometimes, such a challenge can be successful.
An as applied constitutional challenge is much for fact specific. It asks the court to look at your speech, your actions, and the circumstances surrounding your arrest, and rule that in your specific situation, applying the law violates your rights. Since laws are often passed in a vacuum, or in response to specific conduct, when a law is applied to a broader set of conduct, it can be unconstitutional as applied. For example, Denver may implement a strict public camping ban that bans resting on any public way within the city (sidewalks, walkways, paths, parks, etc.). However, if in protest of the law an individual sat on a sidewalk with signs saying “right to rest,” the law quickly runs against an individuals right to free speech. Even though a court might sustain a charge against an individual who was sleeping in a park, the same court may find that it is a legal right to protest the law by sitting with signs on a sidewalk. Similarly, protesting a curfew by violating that curfew and clearly demonstrating it is an act of free speech, may also present an as applied challenge.
However, should all pre-trial litigation not result in a dismissal of charges, you can also proceed to trial. While standard defenses are always available (general denials, choice of evils, mistaken identity) can be used at a trial involving free speech, you can also run what is called a jury nullification defense. This is a particularly difficult defense that is disfavored by courts as it asks a jury to return a not guilty verdict despite all the elements of an offense being proven. Court will often prohibit a defendant from explicitly making this request, and thus, such a defense, often requires appealing to a jury’s basic sense of fairness and justice. This is extremely difficult to pull off, especially in light of skilled prosecutors undercutting such an argument. If you intend to take your case to trial, it is always advisable to hire an attorney.
Remember, your unique circumstances may require a different strategy when litigating your case. You should always consult with a lawyer before you make any decisions about how to proceed in your case.