Protesting is a constitutional right, secured by the First Amendment of the Constitution. However, in Northern Virginia, exercising that right can sometimes lead to criminal charges. Whether you’re demonstrating in Alexandria, Arlington, Fairfax County, Loudoun County, or Prince William County, it’s crucial to understand the laws that govern protests and public gatherings.
In this post, our Northern Virginia criminal defense attorneys explain common protest offenses, how they’re charged under Virginia law, and what to do if you are arrested during a demonstration.
Common Protest Offenses in Virginia
1. Unlawful Assembly (Va. Code § 18.2-406)
Authorities may declare a protest an “unlawful assembly” if they believe violence is imminent. Unlawful assembly can be a Class 1 Misdemeanor or a Class 5 Felony, depending on whether a member of the group carried a firearm or some other dangerous weapon. The Commonwealth must prove that:
- You were in a group of 3 or more people;
- You had the intention of committing acts of force or violence;
- Two or more other people in the group also had that intent;
- The acts of force or violence were likely to jeopardize the public’s safety, peace, or order; and
- The assembly tended to inspire people of ordinary courage with a well-founded fear of serious breaches of safety, peace, or order.
Every person who participates in an unlawful assembly can be charged with a Class 1 Misdemeanor, the most serious class of misdemeanors in Virginia. However, if the person carried a weapon, then they can be charged with a Class 5 Felony, which is punishable by up to 10 years in prison.
2. Disorderly Conduct (Va. Code § 18.2-415)
Disorderly conduct is often used as a catch-all charge when police allege disruptive behaviors. This can include yelling at officers, blocking traffic, or refusing to leave. There is wide discretion in what is considered disorderly conduct, so other offenses could also be charged as disorderly conduct. The Commonwealth must prove that:
- You willfully disrupted a funeral, memorial service, or meeting of a government body, school, literary society, or religious service
- With the intent to cause inconvenience, annoyance, or alarm
Disorderly conduct is a Class 1 Misdemeanor, punishable by up to 12 months in jail and/or a $2,500 fine.
3. Obstruction of Justice (Va. Code § 18.2-460)
Obstruction of justice could involve interfering with law enforcement during a protest. This can include refusing commands, preventing an arrest, or providing false information to police. Obstruction of justice is a Class 1 Misdemeanor and is punishable by up to 12 months in jail and/or a $2,500 fine.
4. Trespassing (Va. Code § 18.2-119)
Trespassing charges often arise during sit-ins or protests on private property. The Commonwealth must prove that:
- You went onto someone’s property;
- After having been requested not to;
- The individual who requested that you not come onto the property or leave the property had the authority to do so; and
- You otherwise had no legal right to be on the property in question
Trespassing in Virginia is a Class 1 Misdemeanor and is punishable by up to 12 months in jail and/or a fine of up to $2,500.
5. Obstructing Free Passage (Va. Code § 18.2-404)
Obstructing free passage is charged when you block the free passage of people after being requested not to by the property owner or law enforcement. While this does not prohibit lawful picketing, you can be charged under this law if the protest has been deemed unlawful. Obstructing free passage is a Class 1 Misdemeanor, punishable by up to 12 months in jail and/or a fine of up to $2,500.
6. Picketing or Disrupting Home Tranquility (Va. Code § 18.2-419)
Picketing or disrupting home tranquility is charged during protests in front of someone’s house or in residential areas. Picketing or disrupting the tranquility of one’s home is a Class 3 Misdemeanor
7. Failure to Disperse (Va. Code § 18.2-407)
If you remain at the place of a riot or unlawful assembly after it has been declared unlawful and you have been warned to disperse, you could be charged with a Class 3 Misdemeanor.
What are My Rights During a Protest?
- The First Amendment protects peaceful protest, but not violence, vandalism, or obstruction.
- Permits are typically required for gatherings in public spaces.
- Curfews and emergency orders may temporarily limit protest rights.
What Should I do if I am Confronted by Police at a Protest?
If you are confronted by law enforcement while attending a protest, you should obey all lawful orders, such as orders to disperse. Declarations by state, county, and city officials can change your obligations, and you need to be aware of such declarations, such as curfews.
If you are detained or arrested while at a protest, do not talk to the police. Do not argue with the police. If you are asked questions, request to speak with a lawyer. Do not sign any confessions or paperwork trying to explain what happened prior to your arrest.
If you are arrested, and released, contact a criminal lawyer immediately. Do not wait for any court dates. Even if you are charged with what you consider (or your friends tell you is) a “low level” misdemeanor, you should consult with an attorney. Even if you think you can afford to just pay off the fine, the charge will stay on your record, which may cause employment and clearance problems for you in the future.
If you are arrested for protesting and denied bond, contact friends or family who can help you get in touch with a criminal defense lawyer immediately. If your bond was denied by a magistrate, a qualified local attorney can file a Bond Motion to attempt to get you released from jail.
Arrested During a Protest? Contact Moore, Christoff & Siddiqui for Help
At Moore, Christoff & Siddiqui, we have defended individuals across Northern Virginia and Washington, DC facing charges related to political demonstrations, civil disobedience, and public activism. Local knowledge matters. Prosecutors in Arlington, Alexandria, Fairfax County, Loudoun County, Prince William County, and Washington, DC may interpret protest-related offenses differently. A criminal defense attorney familiar with Northern Virginia and Washington, DC courts and their legal landscapes can often negotiate better outcomes or challenge unconstitutional arrests. Contact us today for a free consultation.
