New York Protesting Arrest Attorney

Most New York protest arrests happen in a crowd, often right after police order people to disperse, and the case that follows has to prove what one person did. At a large demonstration, officers may arrest dozens of people within minutes, and the officer who files your paperwork may not be the one who saw you. The case can come down to whether police gave a clear order with time to leave, and what the video shows you doing.

Attorney Mehdi Essmidi is a former prosecutor who knows how the other side weighs a protest case and when the evidence against one person in a crowd is thin enough to push for a dismissal instead of a plea. Contact us for a free consultation.

Understanding New York Protesting Arrests

Police in New York may arrest people at a protest when they believe someone broke the law, even though the First Amendment protects the right to protest. Depending on what happened, charges can range from minor violations to felonies.

New York City police has wide discretion to make arrests during protests and marches, and people at peaceful protests may still be charged with disorderly conduct, unlawful assembly, resisting arrest, or more serious offenses like rioting or inciting a riot.

Challenges and Limitations of New York Police Arrests

Encounters between civilians and police during demonstrations often end in misunderstandings, and bystanders and peaceful protesters get swept up in mass arrests. Officers still have to follow the same arrest procedures at a protest that New York law sets for every arrest.

Protesting Related Charges

We most often see these charges after New York protests:

§ 195.05. Obstructing Governmental Administration in the Second-Degree

A person commits obstructing governmental administration by intentionally using intimidation, physical force, or interference to stop, or try to stop, police or another public servant from carrying out an official function.

§ 215.50. Criminal Contempt in the Second Degree

Criminal contempt covers showing disrespect for a court or disobeying its authority. New York Penal Law also makes it a crime to call out, shout, or hold signs on a street or sidewalk within two hundred feet of a courthouse when the message concerns:

• A trial being held in that courthouse
• The character of the court or jury engaged in such a trial
• Making demands of such court or jury in connection with a trial

§ 240.05. Riot in the Second Degree

Riot in the second degree is taking part in tumultuous and violent conduct with four or more people, in a way that causes public alarm or creates a grave risk of it.

§ 240.06. Riot in the First Degree

Riot in the first degree is taking part in tumultuous and violent conduct with ten or more people, intentionally or recklessly causing public alarm or a grave risk of it, when the riot injures someone who isn’t a participant or causes substantial property damage. It is a class E felony.

§ 240.08. Inciting to Riot

A person is guilty of inciting a riot when they urge ten or more people to engage in tumultuous and violent conduct likely to create public alarm.

§ 240.10. Unlawful Assembly

Unlawful assembly is gathering with four or more people to engage in tumultuous and violent conduct likely to cause public alarm. Staying at a gathering after it turns toward violence, with the intent to help it along, may also lead to the charge.

§ 240.20. Disorderly Conduct

A person is guilty of disorderly conduct when, intending to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk of it, they:

• Engage in fighting, violent, tumultuous, or threatening behavior
• Make unreasonable noise
• Use abusive or obscene language or make obscene gestures in public places
• Disturb any lawful assembly or meeting without lawful authority
• Obstruct vehicular or pedestrian traffic
• Gather with others in a public place and refuse to comply with a lawful police order to disperse
• Create a hazardous or physically offensive condition by any act which serves no legitimate purpose

§ 205.30. Resisting Arrest

Resisting arrest is intentionally stopping, or trying to stop, a police officer or peace officer from making an authorized arrest, whether of you or of someone else.

Consequences of a Conviction

Protesters can face fines, restitution, probation, community service, and jail time.

Vandalism or property damage during a protest may bring more serious charges. Under the New York Penal Law, the most common protest charges are classified as follows:

• Obstructing governmental administration in the second degree: class A misdemeanor.
• Criminal contempt in the second degree: class A misdemeanor.
• Resisting arrest: class A misdemeanor.
• Unlawful assembly: class B misdemeanor.
• Inciting a riot: class A misdemeanor.
• Riot in the second degree: class A misdemeanor.
• Riot in the first degree: class E felony.

Common Defenses

An experienced criminal defense attorney may raise several defenses:

• First Amendment Rights: The First Amendment protects your freedom of speech, including the right to protest, and protected speech or assembly may not be prosecuted as a crime.
• Mistaken Identity: In the chaos of a protest, police may arrest the wrong person. Proof that you were not the person who committed the alleged crime could lead to a dismissal of charges.
• Lack of Evidence: The prosecution must prove beyond a reasonable doubt that you committed the alleged crime. Without sufficient evidence, your charges may be dismissed.
• Unlawful Arrest: If police arrested you without legal grounds, the court may suppress evidence obtained from the arrest, including statements and items taken from you, and dismiss charges built on that evidence.

Contact us for a Free Consultation

A protest case can turn on whether the dispersal order was lawful, whether the arrest was authorized, or whether police grabbed the wrong person in the crowd, and Mehdi Essmidi spent years reading protest arrests from the other side, so he knows what can make or break a case. Contact us today for a free consultation.

Frequently Asked Questions – EVELIN YOU’RE HERE

Can I be arrested for peacefully protesting in New York?

Yes. Police may arrest people at a peaceful protest who block traffic, refuse an order to disperse, or break local public-safety laws. The First Amendment protects peaceful assembly and holding signs, and the government may set reasonable limits on the time, place, and manner of a protest.

Do I have to give police my name or show ID at a protest?

New York has no law requiring you to carry ID or show it to an officer who stops you. After an arrest, though, your identity decides whether you go home with a desk appearance ticket or wait in custody to see a judge. An officer may skip the ticket if you have a verifiable identity.

A family member was arrested at a protest in New York. Will they be held overnight?

Most protest charges are misdemeanors or violations, and for those New York law requires police to release the person in most cases with a desk appearance ticket and a court date. Police may hold someone instead if they have an open warrant, missed a court date in the last two years, or wouldn’t give a verifiable identity. Anyone kept in custody must see a judge for arraignment without unnecessary delay, though after a mass arrest in New York City the wait in central booking may stretch past a full day.

Can police search my phone after a protest arrest?

Under the U.S. Supreme Court’s decision in Riley v. California, police need a warrant to search what’s on a phone taken during an arrest. They may hold onto the phone while they apply for one, and there’s a exception for genuine emergencies. Keep the phone locked and tell the officers you don’t consent to a search, since consent gives up the warrant protection. Evidence from a phone searched without a warrant may be challenged in court.

Will a protest arrest give me a criminal record?

A protest arrest leaves a criminal record only if it ends in a misdemeanor or felony conviction. A dismissal, an acquittal, or a completed ACD seals the arrest under CPL § 160.50. Disorderly conduct is a violation rather than a crime under Penal Law § 240.20, and a violation conviction is sealed under CPL § 160.55. Pleading guilty to a misdemeanor such as resisting arrest or obstructing governmental administration is a criminal conviction, so what you plead to matters more than what’s written on the arrest paperwork.

What is an ACD, and should I accept one?

An adjournment in contemplation of dismissal, or ACD, puts your case on hold for six months. If the prosecutor doesn’t move to restore it in that time, the charges are dismissed and the record is sealed.

New York law treats an ACD as neither a conviction nor an admission of guilt, and once the case is dismissed, the arrest is treated as if it never happened.

The court may attach conditions, such as community service you agree to, and a new arrest during those six months may give the prosecutor grounds to bring the case back. Whether to accept one depends on how strong the evidence is, since a weak case may be dismissed outright without the six-month wait.

I’m a student. Can my college discipline me for a protest arrest too?

Yes. Colleges run their own conduct process alongside the criminal case, and a school may suspend or sanction a student for the same protest even after the criminal charges are dropped or sealed. Statements you make in a campus hearing may also reach the prosecutor, so both cases call for one strategy from the start. The Law Offices of Mehdi Essmidi defends students in criminal court and in campus disciplinary hearings.