Being arrested during a lawful public activity is a constitutional injury. The steps you take in the hours and days after that arrest determine whether you can vindicate your rights — both in the criminal case and in any civil claim that follows.
The moment you're being detained or arrested, stop talking about the facts. You have the right to remain silent. Use it. Everything you say will be used against you — not as a figure of speech, but literally. Officers write reports. Those reports quote defendants. Those quotes appear at trial.
You may be required to provide your name in some states (stop-and-identify statutes). Beyond that: "I am invoking my right to remain silent. I want an attorney." Say it clearly, once, and repeat it if asked more questions. Don't explain yourself. Don't justify your activity. Don't argue about whether the arrest is lawful — that's for court, not for the roadside.
The instinct to explain — "I was just filming, I wasn't doing anything wrong, you can't arrest me for this" — is understandable but counterproductive. Your statements become evidence. Let the video be the evidence. The video doesn't accidentally incriminate you.
The footage from your audit is the most important evidence in your case. It may show that you were in a lawful location, that you were not interfering with police operations, that the officer gave no lawful order you failed to obey, or that the arrest was pretextual.
If your equipment was seized: document it. Note what was taken, by whom, and whether it was inventoried in an evidence report. You are entitled to the return of your property that is not evidence of a crime, and the footage itself is your property and potentially exculpatory evidence subject to Brady disclosure.
If footage was uploaded to a live stream, contact the platform or any viewers who may have captured it. Cloud backups, secondary cameras, witnesses with phones — identify every potential source immediately. Evidence disappears. People forget. Accounts get deleted. Act within 24-48 hours.
As soon as you're released, document everything about the encounter: the location, the officers involved (badge numbers if you got them, physical descriptions, patrol car numbers), any witnesses, the exact sequence of events as you remember it, and any physical injuries.
Photograph any injuries immediately — before they heal. Seek medical attention if warranted. Medical records documenting injuries from the arrest become evidence in any civil claim. Memory fades. Write a detailed account within 24 hours while it's fresh, noting every statement the officer made and in what order.
First Amendment auditor arrests typically result in charges like: disorderly conduct, obstruction of a governmental function, failure to obey a lawful order, interfering with a police officer, or trespass. These charges range from Class C misdemeanors (fine only) to Class A or B misdemeanors or even felonies in some circumstances.
The critical question for each charge: was there actually a lawful basis for it? Filming in a public space is constitutionally protected. Being present in a public space is lawful. Refusing to leave a public space you have every right to occupy is not obstruction. Whether the officer's order was "lawful" within the meaning of the obstruction statute depends on whether they had legal authority to give it.
Get your charging document and police report. Read them carefully against the actual elements of each charge. Then see Brief for a charge-by-charge analysis of what the prosecution must prove on your specific facts.
A retaliatory arrest during a First Amendment audit may give rise to both a criminal defense (fighting the charges) and a civil rights claim under 42 U.S.C. § 1983 for First Amendment retaliation, unlawful arrest, or excessive force.
These cases run on different tracks, sometimes with different attorneys (civil rights attorneys often work on contingency). The criminal case must be resolved before a § 1983 claim based on the unlawfulness of the arrest can proceed in some circumstances (see Heck v. Humphrey). But claims based on excessive force during the arrest can proceed regardless of the criminal outcome.
If the hard part is finding or affording a lawyer willing to take an audit case, Fund the Auditor exists for exactly that gap — helping auditors connect with legal representation and the resources to pursue these claims.
For more on the civil side, see Section 1983 First Amendment retaliation claims and our page for First Amendment auditors.
Be My Own Attorney is designed for the intersection of First Amendment rights and criminal charges. Brief analyzes your charges and evidence. Stand supports you in court. Both built for pro se defendants who understand their rights and need the tools to defend them.
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