An informal, nonprofessional look at legal concerns for participants in
Seasons of Discontent: A Presidential Occupation Project (SODaPOP) in Iowa
By Brian Terrell
More Campaign Resources
As your affinity group plans to come to Iowa with the intent of committing acts of nonviolent direct action, we offer a few considerations based on an activist’s long experience with police, courts and jails in Iowa. This is certainly not legal advice. Sally Frank, an experienced National Lawyers Guild attorney and some law students with the Guild will assist with legal observing and be in court to help to the extent possible and be available to answer questions before and after actions.
Possible legal consequences and penalties
Presidential campaign headquarters are private offices and participants in occupations of these are most likely to be charged with trespass under the Iowa Code, 716.7, defined as “entering or remaining upon or in property without justification after being notified or requested to abstain from entering or to remove or vacate therefrom by the owner, lessee, or person in lawful possession, or the agent or employee of the owner, lessee, or person in lawful possession, or by any peace officer, magistrate, or public employee whose duty it is to supervise the use or maintenance of the property,” or “entering upon or in property for the purpose or with the effect of unduly interfering with the lawful use of the property by others.”
Any participant who speaks out, holds an unwelcome sign, refuses to leave, obstructs or or otherwise enhances a public gathering where a candidate is appearing might be charged with trespassing and/or disorderly conduct, 723.4 in the Iowa Code. Disorderly conduct is, among other things, when “without lawful authority or color of authority, the person disturbs any lawful assembly or meeting of persons by conduct intended to disrupt the meeting or assembly,” or when “without authority or justification, the person obstructs any street, sidewalk, highway, or other public way, with the intent to prevent or hinder its lawful use by others.”
These crimes are both simple misdemeanors, punishable under Iowa Code 903.1 by “a fine of at least sixty–five dollars but not to exceed six hundred twenty–five dollars. The court may order imprisonment not to exceed thirty days in lieu of a fine or in addition to a fine.” On top of any fine, there are court costs, a “criminal penalty surcharge” equal to 32% of the fine, and a “law enforcement initiative surcharge” of $125! And, if you are sentenced to jail time, you have to pay rent! Probation and/or community service might be added on to a fine. Jail time, by the way, is rarely imposed unless one pointedly refuses to pay fines, do community service, cooperate with probation, etc.
Bail or Jail
When busted on a simple misdemeanor, the police can either release you with a citation which you would need to sign as promise to show up at in court at a certain date or hold you in jail on bond. If you do not sign this citation, or if you do not have proper ID, the police see you as a flight risk, etc., you can expect to be held on bail. Sometimes out of state arrestees are held and locals cited out. In reality the police often use criteria not mentioned in or allowed by the statutes in determining whom to release and whom to hold, such as how ticked off they are with you, how full the jails are and what games they may be missing on TV if they have to book a crowd into the jail. One protestor who recently refused to sign her citation and expected to spend the night in lockup was thrown out the police station door and was told “we decide what happens here, not you!”
If you are held, you can either settle in for a night in jail or post bail. The Iowa Supreme Court recently reformed the bail procedure and in the case of simple misdemeanors reduced the standard bond from $325 to $300. They also stopped the practice of stacking bails so now if you get hit with two charges you still pay the one $300 bail whereas previously the bail would add up, $325 for each alleged crime. This bail is to ensure that you show up in court and is returned when the litigation is finished. If desired, you also might go through a bail bonds company who would post the bond for you when you give over 10%, which you do not get back, but some of these businesses do not want to handle such small change.
Experienced activists learn what our friends on the street know, that often the easiest course is to refuse citation release, stay the night in jail and plead guilty when they appear before a judge in “jail court” in the morning. The best case hoped for is for a sentence of time served, avoiding a fine, keeping court costs low (no jail rent for time served before sentence) and avoiding more trips to court. Like everything, this is a gamble and penalties up to the max are still possible. If you plead not guilty a trial date is set. Usually the judge will then release you without bail until that date, but the same or a different bail might stand.
If you enter a not guilty plea a trial date is set, usually some months away. This will be a bench trial before a judge unless you file a demand for a jury trial within ten days. You might notice that the Iowa trespass statute contains the words “without justification.” This language is unique among all the federal and the 50 states’ trespass laws (we checked!) and has allowed for some interesting litigation and even one acquittal and a reversal on appeal.
Possible Federal Charges
Senators Obama and Clinton are the only candidates at this writing (October 8, 2007) that are under the protection of the Selective Service as is the President of the United States. There are federal laws punishable by up to six month in prison that could possibly be used against activists who interfere with the movements of these candidates or obstruct the Secret Service details. Typically, however, even those arrested even at events where the President is present or speaking, prosecution is left to local authorities under state law.