COYOTE First Aid Kit: How to Stay Safe at a Protest

Protest is woven into the DNA of the Bay Area; it’s one of the ways our region has made its mark on the world. The Free Speech Movement at UC Berkeley during the 1960s ushered in the modern student activist era. The Third World Liberation Front Strikes at San Francisco State in the late 1960s established the country’s first ethnic studies program. The police accountability protests after the killing of Oscar Grant by BART police prefigured the Black Lives Matter movement. So, even if you’ve never marched or attended a protest yourself, the tradition of showing up — loudly, publicly, and together — has shaped the region’s politics, culture, and likely, the way you live here.

But even in an area with such a deep legacy of activism and protest, we’re confronting a new reality: increasingly militarized police responses, heavier surveillance, and higher stakes for those willing to take to the streets.

This guide will help you understand how to approach protests, and what to do if you’re arrested, including:

• Things to consider before attending a protest
• Know your foundational legal rights while protesting
• Know your legal rights when you’re stopped or arrested by the police
• How to prepare if your intention is to get arrested
• What vulnerable groups should consider
• What to do after you’re released
• Should increased federal enforcement (ICE, National Guard) change the way we protest locally?

It doesn’t offer comprehensive legal advice (you should always consult a lawyer for that), but this can help you stay safer, know your core rights, and navigate a complex criminal legal system. 

The tips below are sourced from the ACLU, the National Lawyers Guild, and conversations I shared with a longtime Bay Area activist, and Nisha Kashyap, an attorney and program director of the racial justice team at the Lawyers Committee for Civil Rights of the San Francisco Bay Area. 

Things to consider before attending a protest

• Who are the organizers of the protest? It’s a good idea to be familiar with the organization or individuals sponsoring the event so that you have a general idea of what to expect when you’re there. Do their past events and gatherings align with how you want to participate? You don’t want to show up expecting a peaceful rally but realize the organizers are planning for an action with higher risks that you’re not prepared for.
• Are you willing to be arrested? Decide your level of participation and prepare accordingly. Sometimes, getting arrested is an intentional part of the protest itself, such as when members of some Bay Area Jewish organizations planned a pro-Palestine sit-in protest in the lobby of Sen. Alex Padilla’s San Francisco office. Know what you’re willing to do beforehand so that you can take additional measures to stay safe. See the “How to Prepare If Your Intention is To Get Arrested” section below for additional tips.

Know your foundational legal rights while protesting

• Public spaces are where your rights are strongest.
  You have the right to speak out at “traditional public forums,” such as streets, sidewalks, parks, as well as other public property, as long as you’re not blocking access to a government building, or interfering with their purpose. Private property owners can set rules for speech on their own property, but free speech is allowed in public places.
• Permits not always required. 
  If you’re marching in the streets or on sidewalks, permits are not required, as long as marchers don’t obstruct car or pedestrian traffic. Without a permit, police can ask you to move to let others pass, or for safety reasons. Events that require the use of sound amplifying devices, or rallies over a certain size, may require a permit.
• Documentation is legal.
  If you are lawfully present in any public space, you have the right to photograph or record anything in plain sight, including federal buildings and the police. 
• Be aware of interfering with police operations.
  While you have the right to film and observe what law enforcement is doing, the line that officers often draw is when you’re interfering with legitimate law enforcement activities. If you do interfere, it provides them grounds to arrest or detain you. Stay mindful of your proximity to law enforcement and whether you’re in their line of sight. 
• Defensive tactics might be used against you.
  In very large protests, impact munitions and tear gas might be deployed by law enforcement for crowd control. Kashyap cautions protestors against actions like kicking a tear gas canister back towards the line of officers. “That conduct may be seen as a threat to the officers, even if they lobbed it in the first place and are in full riot gear…that may serve as a grounds for arrest or detention.” She also says it could undermine later arguments that you were peacefully protesting.

• Remember: surveillance is everywhere.
  In this day and age, all our actions are documented. There should be no reasonable expectation of privacy while you’re at a protest: Surveillance isn’t just from the police; surveillance is happening by your own peers and fellow protestors. There are often drones, live streams and posts— all kinds of footage that can be used against you. Kashyap warns that law enforcement uses social media as an investigative tool and that all content could be reviewed, even if it’s in a private group. “People often put way more things on social media than I think they should… You have to assume that if it's on social media, law enforcement is seeing it,” Kashyap said. Be aware that posting footage of protestors on social media could expose them to criminal liability later on.
• In theory, law enforcement is supposed to provide a dispersal order before arresting people.
  It doesn’t always happen, but when a protest has been declared an unlawful assembly, the police should provide a reasonable opportunity for protestors to comply and leave — including sufficient time and a clear exit path — before issuing arrests. Protestors should receive a loud, clear and detailed notice of the consequences of failing to disperse, which include arrest or use of force.
• If you experience violence or unnecessary force by officers while protesting, you may be able to file a claim against them.
  Even if you're not arrested, if you experienced violent force when you were not in any way, shape or form engaged in behavior that was a violation of the law or a threat to officers, you potentially may have a claim. Example: getting teargassed or getting hit with impact munitions during a protest.

Know your legal rights when you’re stopped or arrested by the police

• You have the right to ask questions about why you’re being stopped or arrested.
  You may plainly ask if you are being detained. You may also ask: “Am I free to go?” If they say yes, you can leave (and should leave). However, Kashyap cautions that asking the officer for reasons for your detention “often opens the door to more back and forth, which is not necessarily productive,” especially during an emotionally heated moment. Her general advice? “I would keep my mouth shut.”

• You have the right to remain silent.
  If you are being questioned by the police, you can respond with: “I am going to remain silent, and want to speak to a lawyer.” It is advisable to not say anything or sign anything unless you have spoken to an attorney. 
• You have the right to speak to an attorney.
  You have the right to make one local call. If you’re talking to a lawyer while you’re in custody, law enforcement cannot listen to this call. You should memorize the number or write the number on your arm in permanent marker.
• Be aware of what you say while you’re detained.
  Conversations that you have with other people in your holding cell are not privileged and confidential. Kashyap advises remaining silent while you’re in a holding cell. Even if the other people in there are like-minded and share your values, anything you say in there could be used against you.
• You never have to consent to a search of yourself or your belongings.
  Under the Fourth Amendment, the police are not allowed to seize or search your phone, or demand to view your photographs or videos without a warrant. Nor may they delete anything under any circumstances. If you do provide consent, that may affect you later in court. A phrase to consider repeating, if needed: “I don't consent to a search. I want my lawyer and I’m exercising my right to remain silent.”
• You may receive a pat down.
  Police are entitled to do a pat down of your clothing when they stop you to ensure there aren’t any weapons or anything else that might be dangerous to law enforcement.
• The police may try to get a rise out of you. 
  There aren’t limits on what police can ask you, but the police cannot compel you to answer. Keep in mind that police may say or ask something inflammatory, so remember your right to remain silent: You do not have to respond to those questions without the presence of an attorney.

How to prepare if your intention is to get arrested

• Make a plan with a trusted friend or family member.
  Tell someone where you’ll be so that they can anticipate which police station or jail you could be taken to. This person should not be at the protest with you and is available to be on-call while you’re protesting. Provide them with contact information for local jail support groups and bail funds in the event you are arrested, along with your full name as it appears on your ID, date of birth, and any medical needs. 
• Let organizers of the protest know.
  Give organizers a heads-up so that they can support you and help you plan for your safety. Some organizations will supply you with contact information for legal support, and will ask for your emergency contact so that they can keep them informed on your status. 
• Prepare to be gone for at least 24 hours.
  It is difficult to know how long you might be away from home. One longtime activist told me that she prepares to be gone for a whole day, which means making sure her friend has keys to her house to feed her cat. Think about all the responsibilities and tasks that you might need assistance with while you’re absent, and plan accordingly.
• Create a buddy system at the protest.
  Plan in advance to have someone else at the protest be a legal observer in the event that you’re stopped or arrested by the police. They can help you take down information like the officer’s name and badge number, as well as the time, date, and location of the arrest. Sometimes there are inaccuracies in police arrest reports, so having a third-party witness can be helpful.

• Consider leaving your phone at home.
  If you intend to be arrested, you should expect that most items will be taken from you. While the police need a warrant to search your devices, it may be worth taking the extra security step by not bringing them at all. If you do not want to leave your phone behind, consider making the phone password-protected, disabling biometric unlocking settings, and turning off your location services.
• Keep identification on you.
  Having an ID on you helps verify your identity, facilitates communication with legal representation, and assists in emergency situations. 
• Dress accordingly and bring personal medical supplies.
  Make sure you’re dressed comfortably and appropriately in case you end up in a very cold jail cell. You might be handcuffed or have to sit in an uncomfortable position. While it’s standard practice to have your belongings taken away from you, you may consider bringing an asthma inhaler or medication you need during a few hours of detention. You can pass them off to a protest ‘buddy’ so that it is close to the location where you're being held, in case of an emergency.
• Memorize important contact information.
  You are entitled to one local phone call. If you call a lawyer, it will remain confidential by law. Know ahead of time who will be your call — a loved one, the public defender's office, a specific attorney, a hotline number— and memorize their phone number, or write it down on your arm. 

What vulnerable groups should consider

• Minors
  Generally, people who are younger than 18 have the same civil rights as adults. Public school students have a First Amendment right to politically organize at school (passing out leaflets, holding meetings) as long as it doesn’t disrupt or violate school rules. If a minor is arrested or detained by an officer, the minor should let the officer know they are under the age of 18 right away. 
• People with disabilities
  Similarly, if a person with a disability is arrested, let the officer know right away by saying “I have a disability” and sharing what accommodations you need. The police department is governed by the Americans with Disabilities Act and are required to provide appropriate accommodations.
• People without US Citizenship
  Remember: No matter if you are undocumented, out of status, a green card holder, or a citizen, you do not have to answer any questions about your immigration history. Kashyap advises people who do not have lawful status or immigration status, to speak to an immigration attorney before engaging in protected First Amendment activity. Because it is a sensitive time, making careful and informed decisions about your participation is strongly advised, and getting direct, personalized advice based on your individual circumstances would be better than following blanket advice.

What to do after you’re released

• Take care of yourself.
  Getting arrested and detained can be traumatizing; prioritize taking care of your physical and mental health when you are released.
• Ensure you understand the legal status of your case.
  Everyone’s situation will be different: some people will be detained and released without charges, while others may receive a notice to appear. Consult with your local public defender’s case or an attorney to gain clarity.
• Evaluate if you need to file a complaint.
  If you experience violence or were brutalized, get legal advice sooner rather than later to understand your next course of action. In California and other states, if you’re going to bring a claim for money damages against a locality, there are administrative steps you have to take in a timely manner before you lose your right to bring up that claim. This includes situations where you experienced undue pain, were left with injuries, or denied medication while you were in custody.

Should increased federal enforcement (ICE, National Guard) change the way we protest locally?

Kashyap says she doesn’t want to overstate the risk of protesting right now: “I want people to feel free and safe to exercise their First Amendment rights.” While the Trump administration has deployed federal troops to Portland, Chicago, and Los Angeles, she says that in most places, you should expect to only encounter your city’s police department. “I don't want people to feel like there has been this massive, across-the-board sea change in the last few months as a result of the Trump administration,” Kashyap said. “Your Fourth Amendment rights, your right to remain silent, your right to an attorney, all of those rights remain the same.” She notes that the only difference may be where you are taken if you are stopped by federal law enforcement, but regardless of the identity of the agency that's arresting you, you are still entitled to the same rights and can feel confident asserting them.

The Bay Area didn’t earn its reputation by staying quiet. Protests help keep democracy healthy and alive. The system is built to make us feel small, but protest reminds us that we’re not. Show up, be safe, stay smart, and have each other’s backs.