Legal Fact Sheet

National Lawyer’s Guild NYC Chapter: 212-679-6018


The content on this page comes from http://occupyyourrights.org/ and our friends at the NYCLU.

Everyone has the right to engage in peaceful protest activity on public sidewalks, in public parks and on public streets in New York City. This includes the right to distribute handbills or leaflets; hold press conferences, demonstrations and rallies; and march on public sidewalks and in public streets.

The government may reasonably limit these activities – for instance, the city requires demonstrators to obtain a permit before marching in public streets. But these limitations are only permissible where they are reasonable, fair and not based on the content of the speech. This guide contains general information about participating in peaceful First Amendment activity in New York City. Some of the information speaks specifically to issues encountered by the Occupy Wall Street movement; otherwise everything in this guide is applicable citywide. If you have questions that are not answered here, tweet them to us via @nyclu or visit our Facebook page.

The NYCLU generally does not provide individual legal representation or advice, but we may be able to help with some issues. If you have a story you want to share with us, please email protest@nyclu.org (unfortunately, we are unable to respond to every email). Throughout this guide, we highlight the issues we are available to assist with and have provided outside resources for other issues.

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Your Rights in Zuccotti Park and Public vs. Private Spaces

photoDo I have a right to protest on private property? No, but the property owner can give consent.

Is Zuccotti Park private property? Zuccotti Park is a privately owned, public space. It is owned by Brookfield Office Properties, but must be made open to the public 24 hours a day, seven days a week in accordance with a 1968 real estate contract between Brookfield and the city. Given the unique nature of this quasi-public park, even the foremost First Amendment scholars cannot predict with certainty how a court would characterize this space and the rights enjoyed by people therein. However, there are some things we know for certain. Read on for information about your rights to access privately owned public spaces.

Do I have a right to protest in Zuccotti Park? While Brookfield Properties had previously declined to enforce certain rules for use of the park (such as the rule against erecting structures), it has since instituted new rules that significantly restrict activities in the park and has sought NYPD assistance in enforcing them. Brookfield Properties and the NYPD have erected semi-permanent barricades around the perimeter of Zuccotti Park. These barricades have two entrances: one to the north, and one to the south. Both entrances are guarded by Brookfield security officers, and those wishing to enter the park should expect to have their possessions inspected. You have a right to refuse such a search but refusal will result in your being denied entry to the park. Some First Amendment activity is still being permitted by Brookfield, such as handing out leaflets and holding small group gatherings inside.

Can I erect tents, install portable toilets, use generators, etc. in privately owned public spaces such as Zuccotti Park? Brookfield no longer permits tents, structures, tarps, sleeping bags, large bags, or lying down in the park. Brookfield and the NYPD enforce both these and other rules to varying degrees at different times. Other items that have been restricted at times include cardboard signs, musical instruments, chairs, food, blankets and warm clothes. While the NYCLU and other groups are investigating the constitutionality of these new restrictions, you should be aware that breaking the rules can result in your eviction from the park and, in some cases, arrest.

Do I have a right to occupy 60 Wall St.? The atrium at 60 Wall St. is also a privately owned public space, owned by Deutsche Bank. Currently, working group meetings and other First Amendment-protected activities are permitted in the space, though the accessible hours for different parts of the space differ. The arcade is open to the public 24 hours a day. The covered pedestrian space is only open between 7 a.m. and 10 p.m., as authorized by the City Planning Commission. People wishing to use the space should comply with these time restrictions. In addition, the building’s management recently posted signs prohibiting loitering, “excessive use of space,” the moving of property such as tables and chairs, “loud boisterous behavior,” sitting or laying on the floor, and posters and signs. It also requires that pedestrians have space to enter and exit the atrium. While the NYCLU and other groups are investigating the constitutionality of these new restrictions, you should be aware that breaking the rules can result in your eviction from the space and, in some cases, arrest.

Is there surveillance of Zuccotti Park? There is heavy video surveillance of Zuccotti Park, which can be observed from a large number of security cameras that are permanently installed around downtown Manhattan. These cameras include NYPD operated cameras and private cameras attached to businesses that are accessible to police.

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Your First Amendment Rights in Public Spaces

photoCan I have a press conference, rally or demonstration on a public street or sidewalk? Yes. Parks and public squares are traditional public forums for First Amendment activity. While these public spaces hold a cherished place in our political history, the Constitution permits the government to impose a variety of rules designed to address public safety as long as they are applied to all speakers in the same way. The government cannot restrict speech based on the content of the message.

The government may require a permit for the use of certain spaces or the use of amplified sound. For example, it is necessary to obtain a permit to march in a street that is accessible to vehicle traffic. A permit is not necessary to march on the sidewalk, so long as demonstrators do not block pedestrian passage, building entrances or streets. Demonstrators should also leave at least one-half of the sidewalk free for use.

If your demonstration does not require a permit, then you do not have to notify the police about it. Whether you notify the NYPD or not, expect police officers to show up. These will likely include uniformed officers, some higher-ranking officers, police on motorcycles or in vehicles (if your event involves a march), and officers from a unit of the NYPD that uses video cameras to record potentially illegal activity.

Can I hold a press conference, rally or demonstration in front of City Hall? You are entitled to have a rally, press conference or demonstration on the steps of City Hall or in the plaza directly in front of the south steps. (City Hall Park also is open for such events, but these are subject to the normal rules for events in city parks.) You do not need a permit for events in front of City Hall, but you do need to schedule your event with City Hall Security.

To schedule an event, or check the availability of the steps, call the City Hall Security Police Desk at (212) 788-6688. Groups are limited to 300 people, only a portion of the steps is available for events, and only one event can use the steps at a time, so reserve early. To access the City Hall steps, everyone must pass through a metal detector. Finally, you will not be able to bring any signs that are attached to rigid objects (such as wooden stakes or poles); use cardboard tubing or hold your signs by hand instead.

Can I have a press conference, rally or demonstration in a city park? You are entitled to distribute materials, participate in small gatherings and participate in First Amendment activity (such as taking pictures, making a speech or performing), in city parks during operating hours. You also have the right to hold a rally, press conference or demonstration in a city park but you may need a permit. There is no fee or permit requirement to demonstrate in a privately owned public space, such as Zuccotti Park. To find out if a space is a city park or a privately owned public space, visit nycgovparks.org.

Can I bring protest/picket signs on subways or buses? Yes. The New York City Transit Authority does not restrict First Amendment activity on subways or buses. However, you are prohibited from bringing any item that extends outside the window or door of a subway car or bus, is a hazard to the operation of the system, interferes with passenger movement, impedes service, or is danger or hazard to other people. Carrying small signs is permissible, as is other First Amendment activity, such as handing out pamphlets or flyers, participating in an artistic performance, taking photographs and speaking to riders.

I see police officers with video cameras—are they allowed to record protest activity? While NYPD TARU (Technical Assistance Response Unit) officers are often seen recording protest activity, they are prohibited from collecting data about legal political activity, unless it reasonably appears that unlawful conduct is about to occur, is occurring or has occurred. This means that if you are not engaged in or planning to engage in illegal behavior, the NYPD is not legally permitted to take pictures or videotape you. The NYCLU is investigating how the NYPD is using video recordings. If you have photographs or videos that show TARU officers recording lawful protest activity, please email them to protest@nyclu.org with the subject line “TARU.”

Are plainclothes police permitted to attend working group meetings/infiltrate and spy on protestors? Purely political activity can only be investigated by the police when they suspect criminal activity. This means that undercover officers may not create dossiers regarding non-illegal activity that they observe, or even begin a preliminary inquiry into the political activities of a person or group, unless they have information that indicates the possibility of criminal activity. However, police officers are permitted to attend public meetings and they do not have to identify themselves as police officers. If you believe a police officer is attending working group meetings or other lawful gatherings, email us at protest@nyclu.org. We cannot represent everyone who emails us, but we may be able to help.

When and how can police use barricades? The NYPD has used barricades in a number of ways in order to contain protest activity. The overuse of these barricades blocks protesters from exercising their First Amendment rights at demonstrations. Generally, if your demonstration will remain on the sidewalk without blocking pedestrian access to the sidewalk or building entrances/exits, you are not required to stay inside a barricaded area.

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Permits

photoWhen do I need a permit? You do not need a permit if you plan to distribute handbills or speak to people from a public sidewalk or in a city park, hold a demonstration, rally or press conference on a public sidewalk, have small gatherings in city parks, or march on a public sidewalk. You will need a permit if you plan to do any of the following:

  • use amplified sound (microphones, megaphones) on public property;
  • hold an event with more than 20 people in a New York City park;
  • conduct a march in a public street; or
  • conduct a procession involving 50 or more vehicles or bicycles in a public street.Permits can be obtained from the NYPD. If you expect to have fewer than 1,000 people, you can apply for a permit at the police precinct where the march will originate. If you expect 1,000 people or more, send your application to: NYPD, Investigation Review Section, 300 Gold Street, Room 305, Brooklyn, NY 11201.Apply for your permit as early as possible. Be persistent in pursuing the process, keep copies of any paperwork you submit, and record the names of the public officials with whom you interact.Are there restrictions on the use of amplified sound?Yes, even with a permit, city rules prohibit the use of amplified sound within 500 feet of a school, courthouse or church during hours of school, court or worship, or within 500 feet of a hospital or similar institution. City rules also prohibit the use of amplified sound between 10 p.m. and 9 a.m. in nonresidential areas. In residential areas, amplified sound is not permitted between 8 p.m. or sunset (whichever is later) and 9 a.m. on weekdays, and between 8 p.m. or sunset (whichever is later) and 10 a.m. on weekends. In many instances, the permit may specify a decibel limit on the level of permissible sound.Finally, if you intend to use amplified sound that requires electricity, you are not allowed to tap into public power (e.g. a light pole) unless you have made specific arrangements with the city to do so.Types of permits:
    • If your event will include more than 20 people, you must obtain a special events permit from the Parks Department. You can obtain a permit application, which contains the general rules governing the permit process, from the Department’s main office in the borough where the park is located or you can apply online at the Parks Department’s website. Applying for a permit costs $25.
    • To use amplified sound in a public place, including city parks, you must obtain a sound permit from the NYPD. You should obtain any necessary permits from the Parks Department before applying to the NYPD. You can download a permit application from the front page of the NYPD’s website, which has a link to “permits” on the left-hand side under the “Find Services” section. The fee for a one-time sound amplification permit is $45. Though city rules specify that sound permits must be sought at least five days before the event, you will typically receive a permit even if you apply less than five days before your event.
    • To march in a street, you must obtain a parade permitfrom the Police Department. There is no fee to apply for a parade permit. As a general rule, the Police Department will only grant permits for street marches if the group is too large to march safely on the sidewalk.
    • Vehicle processions on public streets also require a parade permit. These permit applications are handled the same way as applications for street marches.

    Why do I need a permit to exercise my rights? The government has an obligation to ensure that First Amendment activity is safe for protesters and the general public, and does not interfere with the public’s access to or enjoyment of public or private spaces. Therefore, the government may impose reasonable restrictions on the time, place and manner of First Amendment-protected activities. These restrictions cannot place an unreasonable burden on the freedom of speech. (For instance, the government cannot impose unreasonable fees on groups.) The restrictions must be applied to everyone equally, and cannot discriminate based on the content of your message or the viewpoint or background of your group.

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    Your Rights While Demonstrating

    photoAre there any items that I should not bring to a protest? The NYPD has a standing practice of barring the use of rigid materials as supports for signs at demonstrations (wooden sticks, pipes or plastic tubes). Instead, use cardboard tubing or hold your signs. Signs are not permitted to be affixed to public property, such as light posts or police barriers. You should refrain from bringing weapons, incendiary items, and anything else that can cause injury to your fellow demonstrators or police officers. Just a reminder, you are never allowed to carry a firearm in New York City without a possession license, and licenses are subject to restrictions.

    If you are arrested while demonstrating, all items you have with you (including inside your pockets, purse, backpack, suitcase, etc.) will be searched by the police. If they find anything illegal during this search, you can be charged with a crime.

    Where is it legal for me to take pictures and video? On public property, it is legal to take pictures/videos of whatever you see, including federal buildings, construction sites, bridges, public transportation, police actions, etc. Amtrak and the New York Transit Authority specifically allow hand-held non-commercial photography as long as you aren’t interfering with the operation of with the transit system or bothering other passengers. In recent years, there have been reports of police incorrectly asking people to stop taking pictures. If this happens, you should call 311 to file a complaint with the Civilian Complaint Review Board. You should also let us know by emailing us at protest@nyclu.org. We cannot represent everyone who emails us, but we may be able to help.Private property owners may set their own rules about photography inside their property boundaries. If a property owner tells you not to take pictures, you should stop. If you take pictures after being told to stop, the property owner has the right to ask you to leave, and you can be arrested for trespassing if you do not comply. However, you do not have to turn over your camera, film or memory card, or show anyone your pictures.

    Can I wear a mask (or a gasmask) at a protest? Police in New York City sometimes enforce a very old city law that bans masks and facial coverings at gatherings of two or more people unless it is “a masquerade party or like entertainment.” If there is more than one masked individual at an event, everyone wearing a mask could get arrested. The law permits the police to use discretion in enforcement, so there may be some situations, and some types of face coverings, that police will ignore.

    The law can apply to gas masks, bandanas, Halloween-type masks, and any other mask or disguise. If you are carrying a mask, but not wearing it, it will not be confiscated by police (unless you’re arrested, at which point all your belongings will be temporary held, searched and inventoried by the Police Department and should be returned to you).

    Can I chalk on sidewalks? You can be subject to arrest for chalking on public property. The NYPD has been known to enforce a New York City law that bars writing on any public property, including sidewalks. This law does not apply inside privately owned public spaces, like Zuccotti Park, which are not public property (though these spaces can and do have rules against damaging property).

    Can I be fired for participating in a protest? It is generally illegal for any employer or employment agency to refuse to hire, fire or otherwise discriminate against you because of legal political activities outside of working hours, off the employer’s premises and without use of the employer’s equipment (there are exceptions to this rule for some journalists and federal employees; if you need more information contact an employment attorney). If you are fired for participating in lawful protest, send us your story at protest@nyclu.org. We cannot represent everyone who emails us, but we may be able to help.

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    Your Rights when Interacting with Police

    photoWhat should I do if I am stopped or questioned by the police? Police may stop and briefly detain you only if there is reasonable suspicion that you committed, are committing or are about to commit a crime. You should ask if you are free to leave. In New York, you are not required to carry ID, and you don’t have to show ID to a police officer. If you are issued a summons or arrested, however, and you refuse to produce ID or tell officers who you are, the police may detain you until you can be positively identified. “Talking back” to police officers or running away, even if you believe what is happening is unreasonable, can lead to your arrest. You do not have to answer questions by the police.

    Do I need to consent to a search by police officers? You never have to consent to a search of yourself, your belongings or your car. If you do consent to a search, it can affect your rights later in court. If the police say they have a search warrant, ask to see it and check that the information is correct. If they don’t have one or it is incorrect, say clearly and loudly, “I do not consent to this search.” This will probably not stop the police from searching you, but it will preserve your argument that the search was unlawful, if you have to go to court. If you interfere with or obstruct the police, you can be arrested.

    Police cannot arrest you simply for refusing to consent to a search, and they cannot search you without probable cause to believe you have done something illegal.

    What do I do if I think a police officer is violating my rights? For your safety and to protect your legal rights, you should always follow orders from police officers while demonstrating. If you feel the order was unlawful or improper, or you were mistreated by a police officer, you have other opportunities for redress at a later time. If you refuse an officer’s orders, you can be subject to arrest.

    But there are some things you can do if you feel an officer is acting unlawfully or unreasonably. First, stay calm. You do not want to escalate the situation. Ask to speak with a superior officer. In many circumstances, officers will ignore this request, but sometimes a superior will have a different perspective on an issue.

    Second, request and record the officer’s name and badge number. If an officer purposefully obscures his or her badge number or name, you should file a complaint with the Civilian Complaint Review Board by calling 311. In that case, take note of the date, time, specific location, and a physical description of the officer.

    Third, try to remember all the details of the interaction and write them down as soon as possible. If you are injured, seek medical attention immediately, and be sure to take photographs of your injuries and request copies of all treatment records. If you want to file a complaint against an officer, you can do so by calling 311 or contacting the Civilian Complaint Review Board.

    If you are arrested and the judge finds that you were arrested for engaging in First Amendment-protected activity, the charges may be dropped. Don’t skip your court date, or a warrant can be issued for your arrest.

    How should I behave if I get arrested to avoid additional charges? Stay calm and in control of your words, body language and emotions. Don’t get into an argument with the police. Remember, anything you say or do can be used against you. Keep your hands where the police can see them. Don’t run. Don’t touch any police officer. Don’t resist, even if you believe you are innocent. If you complain at the scene, or tell the police they’re wrong, do so in a non-confrontational way that will not intensify the scene.

    What is “resisting arrest”? New York law defines resisting arrest as intentionally preventing or attempting to prevent a police officer from conducting an authorized arrest of yourself or another person. Resisting arrest is a crime. If you see another demonstrator being arrested, you could be charged with “resisting arrest” if you attempt to prevent a police officer from making the arrest.

    If I get arrested, what should I do to protect my rights? If you are participating in an Occupy Wall Street event, particularly if you are planning to engage in civil disobedience, it is a good idea to identify a lawyer or legal organization ahead of time who you can call if you are arrested. Many organizations, including the National Lawyers’ Guild and Legal Aid Society, provide free or reduced-cost representation.

    If you are arrested, ask for a lawyer immediately. Do your best to remember officers’ names, badge numbers, patrol car numbers and physical descriptions. Write down everything you remember as soon as possible. Try to get witness’s names and phone numbers. If you are injured, take photos of the injuries as soon as possible. Ask for copies of any medical treatment files.

    You have the right to remain silent and the right to talk to a lawyer. Don’t tell the police anything except your name and address. Don’t give any explanations, excuses or stories, or sign any statements. Never answer questions without a lawyer present. You can make your defense later, in court, based on what you and your lawyer decide is best.

    If you have a lawyer, ask to see him or her immediately. If you can’t afford a lawyer, you have the right to a free one. You should request a lawyer as soon as possible, and be prepared to make the request more than once. Don’t say anything to police without speaking to a lawyer.

    Within a reasonable time after your arrest or booking, ask the police to contact a family member or friend. If you are permitted to make a phone call, anything you say at the precinct may be recorded or listened to. Never talk about the facts of your case over the telephone. Do not make any decisions in your case or sign any statements until you have talked with a lawyer.

    Are there any laws in New York to protect demonstrators from police horses? The NYPD Patrol Guide states that, when horses are used to disperse a crowd, it is important to make sure that the crowd has sufficient means of exit. As such, where there is a mass of protesters with no means of disbursing, a command to use horses would be improper. Use of a horse could also be considered an assault/battery or a crime in some circumstances. To report a complaint about the use of police horses, contact the Civilian Complaint Review Board over the web or by calling 311.

    Do I have the right to defend myself if I am assaulted by a police officer? You cannot use physical force to resist an arrest by a police officer. In addition, a police officer may use physical force to the extent that he or she reasonably believes is necessary to make the arrest, prevent you from escaping custody, or defend himself or herself from another person he or she reasonably believes will imminently use physical force. In other circumstances, you have the right to use physical force on another person, including a police officer, when and to the extent you reasonably believe is necessary to defend yourself or someone else from immediate, unlawful physical force (not to defend yourself from arrest). This does not apply if you were the initial aggressor.

    However, it is not advisable to physically engage with police officers. Even if you reasonably believe you have a right to defend yourself or someone else, there is always a possibility that you will be arrested, and even convicted, because of your actions. It is best to avoid such actions, to the extent possible. If you feel that you were mistreated by the police, you can always file a complaint with the Civilian Complaint Review Board over the web or by calling 311. You can also notify the NYCLU at protest@nyclu.org. We cannot represent everyone who emails us, but we may be able to help.

    Is it legal to photograph police officers or write down their badge numbers? Yes. If you are legally present in a public space, you have the right to take pictures of anything in plain view. This includes pictures of police officers and vehicles. Police officers may not confiscate or require that you share your photographs or video with them without a warrant. Under no circumstances can police delete your photographs or video. Remember, however, that you have to obey other laws while you are taking pictures, so be careful not to interfere with police officers, obstruct pedestrian traffic or trespass on private property.

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    Your Rights as a Non-Citizen

    photoI’m a non-citizen. Can I participate in First Amendment activity? Non-citizens in the United States generally have the same constitutional rights as citizens when law enforcement officers stop, question, arrest or search them or their homes. However, there are some special concerns that apply to non-citizens. Please read the following information.

    Do I have to answer questions about my immigration status? You do not have to answer any questions from the police. But do not falsely claim U.S. citizenship. It is a good idea to speak with a lawyer before you answer questions about your immigration status. Always remember that even if you have answered some questions, you can decide not to answer further questions.

    There is one limited exception: for “nonimmigrants” (a “nonimmigrant” is a non-citizen who is authorized to be in the U.S. for a particular reason or activity, usually for a limited period of time, such as a person with a tourist, student or work visa), immigration officerscan require you to provide information related to your status. However, even if you are a nonimmigrant, you can still say that you would like to have your lawyer with you before you answer questions, and you have the right to remain silent if your answer to a question could be used against you in a criminal case.

    Do I have to show officers my immigration documents? The law requires non-citizens who are 18 or older and who have been issued valid U.S. immigration documents to carry those documents with them at all times. If you are out of status, or if you are U.S. citizen, you do not have to show any ID to police officers.

    Can I call my consulate if I am arrested? Yes. Non-citizens arrested in the U.S. have the right to call their consulate or to have the law enforcement officer tell the consulate of your arrest. Law enforcement must let your consulate visit or speak with you if consular officials decide to do so. Your consulate might help you find a lawyer or offer other help.

    What if I am charged with a crime? Criminal convictions can make you deportable. You should always speak with your lawyer about the effect that a conviction or plea could have on your immigration status. Do not agree to a plea bargain without understanding if it could make you deportable or ineligible for relief or for citizenship.

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