Here’s how police are charging protesters, when they’re charging them at all

As crowds fill the streets of Tampa Bay protesting police brutality and the death of George Floyd, more than 180 people have faced criminal charges and even more have been detained by law enforcement.

The charges vary depending on the city and offense, but a few appear frequently in arrest reports obtained in Hillsborough and Pinellas counties during the past week — unlawful assembly, rioting or inciting to riot, violation of an emergency management rule or order, burglary of a structure and resisting arrest without violence.

The Tampa Bay Times spoke with local defense attorneys to learn what trends they’re seeing in the way agencies are enforcing the law and how they’re balancing civil order with civil rights.

“You have the right to peacefully assemble and peacefully protest," said Clearwater civil rights lawyer Michele Rayner-Goolsby. "If law enforcement comes up to you, you don’t have to speak to them, you don’t have to talk to them, you don’t have to provide any information in that context.”

Zip ties, handcuffs or a verbal command like, “Sit down, don’t move,” are all examples of restraint and detention, Tampa defense attorney Bryant Camareno said.

“Once you’re taken to that level where you’re now commanded to stay in one place, that’s equivalent to a formal arrest,” Camareno said. “You have the right to have a lawyer and maintain silence.”

Sometimes there is a gray area, where an individual has to stop and answer questions and isn’t free to leave, but it’s unclear where that road leads, Rayner-Goolsby said.

“One thing we tell our clients is to actually ask that question, ‘Officer, am I free to leave?’” she said. “If they say no, you can ask, ‘Am I under arrest?’ If not, it can become a sort of loop ... you’re detained and you’re not free to leave, but you’re still not under arrest.”

Largo criminal defense attorney Bridgette Domingos said there’s no time limit on how long police can detain people without charging them.

“If you’re not under arrest, they should hold you no longer than necessary to make sure they have no reasonable suspicion,” Domingos said. “But if you’re going to hold a citizen for 12 hours, never charging them with a crime ... I think that’s a problem.”

About half the charges filed from the local protests have included unlawful assembly, a second-degree misdemeanor punishable up to 60 days in jail. It’s unlikely a protester would face that much jail time, Camareno said. The punishment depends on the circumstances, the individual and the judge. It could mean court costs or it could mean 10 days or more in jail, he said.

What constitutes an unlawful assembly can be difficult to define. Florida statutes say it requires a gathering of three or more people and involves a “breach of peace” or “any unlawful act.”

It depends on the circumstance, said Tampa police spokesman Eddy Durkin, but officers can declare an unlawful assembly when there is criminal activity, an escalation of violence or property damage.

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Around midnight Tuesday, 64 people were taken into custody downtown for unlawful assembly because they were “throwing stuff and damaging property,” Durkin said. Some of those arrested have taken to social media to rebut that charge, saying they remained peaceful.

People protesting peacefully should alert an officer if they hear others trying to incite crime or violence, Dugan said.

“We support their right to protest, but we won’t support criminal activity."

With a second-degree misdemeanor such as unlawful assembly, it is the officer’s discretion whether to hand someone a notice to appear in court or to arrest them. Both have long term consequences, but an arrest also involves a jail booking and a mugshot that can live on the internet.

Domingos said she’s seen cases in Pinellas County where protesters remain in jail with no bond or it’s set as high as $1,000. A bond schedule for the Sixth Judicial Circuit in Pinellas lists the release of defendants on their own recognizance as a low bond and $250 as a high bond.

“Literally, there’s people who are being charged $1,000 dollars,” Domingos said. “This is almost unheard of. We’re still dealing with coronavirus and you’re literally saying because they were peacefully protesting, now they’re going to be in a situation that could be really threatening long term.”

Here is a list of some of common charges associated with the arrest of protesters in Hillsborough and Pinellas counties.

Unlawful assembly: Second-degree misdemeanor, punishable up to 60 days in jail. This must involve a gathering of three or more people. The statute refers to a group doing anything that commits a breach of the peace or “any other unlawful act.” A number of lawyers called this statute vague and said much of it is left to the discretion of law enforcement.

Disorderly conduct: Second-degree misdemeanor, punishable up to 60 days in jail. Includes a brawl or fight, a breach of peace or anything that may affect someone else’s peace and quiet.

Rioting/inciting to riot: Third-degree felony, punishable up to five years in prison. This includes anyone in an unlawful assembly who starts to pull down, destroy or demolishes any house, building, store or vehicle. It also covers offenders who don’t partake in any actual destruction but encourage others to act.

Violation of an emergency management rule or order: First-degree misdemeanor, punishable up to a year imprisonment. This charge was issued last weekend when Tampa had a curfew in place. Neither Pinellas nor Hillsborough have curfews in place now.

Resisting arrest without violence: First-degree misdemeanor, punishable up to a year in prison. This includes walking or running away from a police officer at a scene.

Resisting arrest with violence: Third-degree felony, punishable up to five years in prison. This includes shoving, punching or otherwise harming a police officer while trying to avoid arrest.

Fleeing or attempting to elude: Third-degree felony, punishable up to five years in prison. Similar to resisting arrest without violence, but this requires the offender to be fleeing in a car.

Petit theft: First-degree misdemeanor, punishable up to a year in prison if the property stolen is more than $100 but less than $750. The degree of the misdemeanor also depends on prior convictions.

Possession of burglary tools: Third-degree felony, punishable up to five years in prison. This includes possessing any “tool, machine or implement” with the intent to commit a burglary. Attorneys said this is another example where the statute is vague and can include such common items as gloves, bolt cutters or a baseball bat.

Burglary of structure: Third-degree felony, punishable up to five years in prison, as long as someone isn’t in the building and the offender is not armed and does not assault anyone. Burglary involves entering a building or vehicle or stepping across property lines.

Burglary of structure during emergency: This becomes a second-degree felony, punishable up to 15 years in prison, if the burglary is conducted during a state of emergency, curfew, power outage or state of unrest.

Aggravated battery: Second-degree felony, punishable up to 15 years in prison. This includes fights and violence that intentionally cause great bodily harm or permanent disability or disfigurement.