Arrested for Protesting: What to Do Until the Lawyer Comes

Marching, protesting, civil disobedience—they all carry the risk of arrest. No one should attend these events without thinking ahead about how to prepare and respond. Preparations include practical considerations such as clothing and protective gear, but they should also involve readiness for the legal consequences of an arrest. Here are some suggestions on how to get ready.

Expect Bail and Make Decisions

Most protesters will want to bail out of jail as soon as possible. Bailing out will require that you have bail money ready (either the entire amount, or enough to purchase a bail bond) and someone to post it for you. So you’ll need to have an idea of what the bail will be, and you’ll need a friend.

Learn the Bail Schedule

In most jurisdictions, the courts publish a bail schedule for each crime. Unless a protester is arrested for assault, looting, or other deliberate acts of serious illegality, the most likely charge a protester will face are the misdemeanors of trespass, unlawful assembly, failure to disperse, disorderly conduct, and possibly resisting arrest (see below). You’ll want to know, in advance, the bail amount associated with these crimes.

Courts generally make their bail schedules available to the public online. Search for “[Your County Name] bail schedule.” With a little digging, you should be able to find the misdemeanor schedule. For example, the California Santa Clara County bail schedule lists $1,000 as the bail amount for most of the offenses listed above.

If you’re having trouble finding the schedule, call the criminal court clerk for your county, or the public defender’s office, and ask for the bail amounts for the above offenses.

Decide How You Will Pay for Bail

Knowing that you’ll be able to bail out for $1,000 is the first step: now, you need to make that money available. You can bail out in one of two ways:

• Pay the entire amount to the court. If you have $1,000 in cash that you can park with the court while your case continues through the system, this is the better route. If you show up for all court appearances, you get the money back, minus a small administrative fee, when your case is closed.
• Pay a bail bondsman. The bail bondsman charges you a percentage of the bail, often 10%, and puts up the rest to the court. If you abscond, the bail bondsman loses its share (one reason that bail bondsmen send people out to find and arrest those who have skipped town). Even if you show up for all appearances, you don’t get the money back that you paid for the bond.

Enlist a Friend to Help Post Bail

If you decide that you can pay the entire sum up front, make that money available to a trusted friend, who will have to make a trip to the courthouse to give the money to the court or the clerk. If you’re going to use a bail bondsman, give your friend the money for the bond and the name and phone number of the office you’ll use (do some internet research first; some bondsmen charge more than others).

Own Recognizance: Alternative to Bail, in These COVID Times

Instead of bailing out of jail, you might be able to be released “on your own recognizance,” also known as “OR.” Defendants get OR’d when they can convince the judge that they will show up for their court appearances, without the threat of losing their bail. These defendants show the court that they have significant ties to the community (they own property, have a business or long-standing job, have a local family), and no history of skipping court.

An additional argument for OR became apparent as the coronavirus pandemic swept the country in 2020. Because it’s impossible to practice social distancing and isolation in jail, people in jails and prisons were dangerously prone to contracting the virus. Judges were asked to release misdemeanor defendants without bail, and some counties even mandated that all defendants be OR’d. If the coronavirus is still a problem when you’re arrested, avoiding the virus is an additional argument you can make for OR.

Write Down a Number for Your Post-Arrest Phone Call

You get one phone call. Everybody knows that. Be sure that you know that number, by writing it on your forearm in ink. Don’t assume that you’ll remember even a frequently called number, because chances are you don’t punch-in those numbers when you call (you use your cell phone’s “favorites” list), and the stress of the situation might make it difficult to recall the number. If your phone call will be to your lawyer, write the number, but not the lawyer’s name.

Consider Leaving Your Phone at Home

When you’re arrested, all of your belongings will be taken when you’re booked into jail. If your cell phone goes into the plastic baggie with your wallet and keys, you can’t be sure that the police won’t look at it. The US Supreme Court has ruled that generally, officers need a warrant before they can search a cell phone, but there are exceptions. But why give them the opportunity? Suffice it to say that you’re better off not giving them the phone in the first place.

For the same reasons, take a look at your wallet’s contents before heading out. Remove any information that is personal and sensitive. A driver’s license and some cash is all you need carry.

What Should You Say to Police?

Say nothing to the police, district attorneys, and government investigators. It’s as simple as that. You might be questioned before you’ve been arrested, or after; the questions might be innocuous, or provocative bait, designed to make you drop your guard and talk. You might be read your “Miranda rights,” or you might not. In every situation, do not respond. If you say anything, it should be no more than, “I do not wish to waive my Miranda rights.”

Similarly, do not chat-up your cell mates, who are likely to be strangers. While they might share your principles and never turn on you, you can’t be sure. You also don’t know whether any of them are “plants,” or prisoners who have been placed in the cell because they’re willing to testify against others in exchange for leniency.

Talk to a Lawyer

If you’ve been arrested during a protest, chances are you’re facing criminal charges. Unless you qualify for the services of the public defender, you’ll need a lawyer—self-representation in a criminal case is rarely a good idea. Look for someone who practices in the courthouse where your case is being heard. If you are facing federal charges, be sure that the lawyer you hire has experience in federal court, not just state court.