How to Flex Your Rights During Police Encounters

That's how Crawford County State’s Attorney Tom Wiseman justifies his decision to bring five felony charges against an Illinois man who recorded an encounter with police officers. As the debate over the right to record police heats up, I've often found myself wondering how on earth anyone in law-enforcement could justify arresting citizens simply for recording video of a public encounter.

Alas, this piece by Radley Balko answers my question and it isn’t pretty. Imagine my surprise to find the same folks who coined the phrase, "If you've got nothing to hide, then what are you worried about?" suddenly claiming a right to privacy after videos of police misconduct began springing up all over the web.

Ta-Nehisi Coates at The Atlantic comments on a recent incident in which a 57-year-old school-teacher was tased after calling police to report a prowler.

New York Times reports on a section of Brooklyn that's become a focal point for NYPD's out-of-control stop and frisk tactics. "These encounters amounted to nearly one stop a year for every one of the 14,000 residents of these blocks." Yikes.

The controversy over last year's arrest of Harvard Professor Henry Louis Gates is back in the press following the release of a new police report investigating the incident. Interestingly, the findings don't really address the issue of race, which is surprising given the role that racial tension played in the encounter and subsequent debate.

NPR had a great piece last week on the right of citizens to videotape police, featuring Radley and Carlos Miller. USA Today also has an excellent editorial defending the pratice of recording officers in public.

This video of a police officer punching a young woman is generating a lot of discussion around the web:

Unlike most viral videos of police using force against a suspect, this one seems to be generating a considerable amount of sympathy for the officer involved. Even on sites like Digg.com with a history of exposing and condemning police brutality, a majority of commenters feel that the officer acted more or less appropriately under the circumstances.

Since we can't see what took place prior to the video footage, it's impossible to completely critique the officer's handling of the situation. But it's clear that the woman who was struck had shoved the officer in an attempt to help her friend resist arrest. Though hard to watch, I doubt the officer's actions were technically illegal under the circumstances. He'd been assaulted, and police are authorized to use force when that happens.

I think I agree with Radley Balko that the officer should never have let a jaywalking arrest escalate to this point, but there's a reasonable counter-argument that police shouldn’t let uncooperative suspects off the hook simply to avoid a conflict. Flex Your Rights teaches passive non-cooperation such as remaining silent and refusing to consent to searches, and we strongly discourage physically resisting police during a detention or arrest.

The punch was ugly and unnecessary, but the behavior of the suspects here was also completely out of control. Even the most unreasonable arrest is better resolved by pleading your case to the judge than wrestling the officer on the street. You can't win that way, and there's no limit to how badly you could be hurt.

The Supreme Court ruled today in Berghuis v. Thompkins that a criminal suspect must specifically invoke the right against self-incrimination in order for constitutional protections to apply.

The case centered around the interrogation of murder suspect Van Chester Thompkins, who remained virtually silent for hours, before giving a few brief responses to police questions. Most significantly, Thompkins answered "yes" when asked, "Do you pray to God to forgive you for shooting that boy down?" The statement was introduced at trial and Thompkins was convicted.

In a 5-4 ruling, the Court held that criminal suspects who do not clearly state their intention to remain silent are presumed to have waived their 5th Amendment rights. Ironically, suspects must literally open their mouths and speak in order for their silence to be legally protected. The new rule will defer to police in cases where the suspect fails to unambiguously assert their right to remain silent.

Naturally, Flex Your Rights is concerned about any retreat from the basic principle that criminal suspects should not be compelled or coerced into incriminating themselves. Today's ruling will undoubtedly create additional challenges for suspects who already understand too little about how their constitutional rights apply during police interrogations.

Fortunately, however, the Berghuis decision leaves intact the best strategy for handling any police interrogation: keeping your mouth shut. Requiring suspects with limited legal knowledge to clearly assert their rights may seem a bit strict, but it's irrelevant if the suspect never says a word to begin with. The point of the 5th Amendment isn't to protect you after you've foolishly incriminated yourself, it's to remind you that you're not obligated to answer police questions in the first place.

Ultimately, the burden is on each of us to understand our rights and use that information to make the best decisions. It's unlikely that any Supreme Court decision will ever change the fact that remaining silent is your best and only strategy if police are asking you incriminating questions.

Since Flex Your Rights was founded in 2002 to educate the public about constitutional rights during police encounters, our work has met with very little controversy. Every citizen should understand their basic Bill of Rights protections, and our materials have been embraced by both police and the public. That's why we're deeply concerned about today's news that two high school teachers in Virginia were suspended after showing one of our videos to their students:

Two Norview High School teachers were placed on paid administrative leave this week after a parent complained that they distributed classroom materials that gave advice on how to deal with police if stopped.
…
The video, “Busted: Citizen’s Guide to Surviving Police Encounters,” is posted online at http://tinyurl.com/2sb2ho.  It opens with a portrayal of young adults stopped by a traffic officer who searches their car and arrests them for marijuana possession.
…
A commentator on the video states, "Whether or not you break the law, this video is designed to explain what the law is and how you can legally and properly assert your constitutional rights through even the most stressful police encounters."

For each scene, the commentator explains how legal rights apply to police searches of vehicles, homes or individuals and how people can cite those rights during encounters with police. [The Virginian-Pilot]

Millions of these encounters occur each year in America, and it is plainly absurd to suggest that our young people should receive no education in how to handle them. People who understand their rights and know what to expect during a police encounter are less likely to make regrettable decisions, thus our materials reduce the likelihood of negative outcomes for both individuals and officers of the law.

Unfortunately, as we work to provide this important public service, we do sometimes receive criticism from individuals who misinterpret our discussion of constitutional rights as an endorsement of breaking the law. It's not. We sometimes depict and discuss criminal activity in our materials because there are important legal lessons that are difficult to illustrate without it. Police are trained both to fight crime and uphold the constitution, and there are numerous instances in which these interests come into conflict with one another.  Depicting such scenarios makes our work realistic, but should not make it controversial.

In a perfect world, only bad people would be stopped by police, misunderstandings involving innocent people would not occur, and our laws would never be used to punish anyone who didn't deserve it. Things just aren't that simple, and the constitutional rights we all enjoy were brilliantly designed by our nation's founders to help ensure fairness under sometimes complicated circumstances.

That's why police have endorsed, rather than condemned our efforts, and the video at the heart of today's controversy has earned overwhelmingly positive reactions such as this one:

"BUSTED teaches that people have precious inherent rights under our
Constitution and should never feel guilty when exercising these rights
during police encounters."

      - Joseph D. McNamara, Former San Jose Police Chief

Indeed, no American should ever be ashamed to assert their Bill of Rights protections, and our educators should be praised, rather than reprimanded, when they teach constitutional rights in the classroom. Withholding this important knowledge from students is gravely irresponsible and we'll vigorously oppose any effort to silence or mischaracterize the work of our organization.

Please click here to share your concerns with the school administration, and stay tuned for more details as they emerge.

Radley Balko takes a look at a couple recent episodes of police abuse caught on camera. Both events are notable not only for the outrageous behavior involved, but also for the subsequent efforts to cover up what took place.

As video technology becomes increasingly ubiquitous, such recordings have rapidly become one of the most important tools for ensuring police accountability. It is critical that the right of citizens to record police in public be upheld and that efforts to restrict such activity be vigorously condemned. I'm not usually a big fan of the whole "If you're not doing anything wrong, what are you worried about?" argument, but when it comes to public servants charged with upholding the law, there's simply no excuse for secrecy.

Law enforcement officers who do their job legally and professionally should have no objection to being recorded in the course of their public duties. To argue otherwise is to create a blueprint for misconduct.

DeNeen L. Brown at The Washington Post attended our D.C. premiere at the Cato Institute yesterday and put together a thorough piece that's available online and in print. We're hearing from a lot of new people today as a result and it's exciting to see the video receive this kind of attention. We've even gotten a couple orders from police departments and I'm looking forward to their feedback because we worked hard to create a resource that would have educational value for police as well as citizens.

Along these same lines, there's one point that I wished we'd better clarified in our conversation with The Post. Despite its focus on urban settings and black and Hispanic suspects, I'd like to emphasize that 10 Rules isn't just for people of color. We wanted to place emphasis on representing communities that feel particularly targeted by police, but the legal and practical concepts in the film are valid and useful no matter who you are. Although race can sometimes be a factor in influencing who gets approached by law enforcement, it's really not a factor in terms of how the citizen should behave during an encounter. Anyone who's curious about how best to handle police encounters should find the film very helpful.

Our new film 10 Rules for Dealing with Police is arriving in mailboxes around the country, and the reviews are just getting started.

*Our friend Phil Smith at StoptheDrugWar.org takes an in depth look at the film here.

*Barbara Hollingsworth at the Washington Examiner attended yesterday's D.C. premiere at the Cato institute and has a good summary.

*Popular drug policy blogger Pete Guither has an awesome review at his site, DrugWarRant. I particularly like this one, because Pete makes fun of my acting:

Scott plays Thug #1. Oh, yeah. Not Thug #2, which is played quite competently by Steve Silverman. No, the number one thug in this movie is definitely Scott Morgan.

I’m thinking there may be an Oscar nomination. That lean-back double-take when he starts running from the police is exceeded in style only by the intentional dive and double roll shortly after, ending with his grotesque mug frozen on the screen, which left me doubled up with laughter (and will give me nightmares tonight). Please, please, please, flex your rights.org — turn that sequence into a youtube video so I can watch it over and over again!

Fortunately for Pete and the rest of you, we have several outtakes from that scene. I'll see what I can do to get them spliced together into one awesome clip. Everyone seems to love seeing Steve and I get chased and roughed up by two massive cops, but wait til you see it happening over and over again with slight variations. Stay tuned, folks.

In the meantime, you can get your copy of 10 Rules for Dealing with Police right here.

As long as the public remains largely ignorant about 4th Amendment rights, police will continue to rely on coercive tactics that treat people as guilty until proven innocent:

Dallas police began a new initiative today to combat drugs. Citywide, officers are headed to suspected drug houses to "knock and talk" with the occupants.

The technique involves knocking on the door of a suspected drug house and trying to talk the people inside into inviting officers in to search without a warrant. Police can enter without a search warrant if they see illegal activity happening.

Dallas police have long used the technique, but its use will be widened during the next few months to include more officers and more areas within the city. [Dallas Morning News]

If this sounds to anyone like a program that only affects drug offenders, it's not. Police tactics like these are always framed as an effort to "get weapons and drugs off the street," but they are so much more than that. By definition, the people targeted under such policies are innocent citizens against whom police have no actionable evidence of criminal activity. After all, when police have credible facts indicating that drug crimes are taking place at a specific location, they may obtain a search warrant and enter lawfully.

The "knock and talk" approach is used exclusively to enter private residences in the absence of probable cause. Vague and unfounded suspicions, or even prejudices, could ultimately determine which locations are singled out for investigation. In the process, innocent people living in high-crime neighborhoods are placed at great risk of arrest in the event that a guest, neighbor or former tenant left something illegal on their property. Our upcoming video, 10 Rules for Dealing with Police shows exactly how that can happen.

As misguided as these tactics are, there is one simple option available to concerned citizens who don't want police digging through their drawers: just don’t let them in. Unless you give them permission to enter, police need a warrant to search your home. You may simply decline the search and tell the officers that you'll gladly cooperate if they return with a warrant. If that makes you uncomfortable, another option is not to answer the door at all, which also reduces the likelihood of police claiming that they saw or smelled something illegal when you opened the door for them.

The bottom line is that invasive "knock and talk" programs don't work if everyone knows their rights, which is why the D.C. police simply canceled theirs after we started doing this:

Anyone in Dallas who's concerned about the new policy should consider organizing a similar effort.

Everyone's talking about this wild story from New York City, in which two men spent 5 days in jail for a bag of coconut candy. The driver consented to a search of his vehicle and both men were arrested after police discovered what they believed was crack cocaine. An officer told the passenger to "shut up" when he insisted it was candy, and the men had to wait in jail for almost a week before lab tests proved their innocence.

In addition to demonstrating the combined arrogance, incompetence, and contempt for innocent people that so often characterizes drug war policing, the story also provides another glaring example of how consenting to police searches can instantly make a bad situation much worse. Pete Guither explains:

Lesson #1: Never, ever, ever, ever, agree to a search. If you’re guilty, you’re helping them catch you. If you’re innocent, you’re wasting your time, you’re taking a chance since they aren’t required to fix anything they break, you’re leaving yourself open for being charged for something you didn’t know about that fell out of a friend’s pocket, and you’ve got the possibility that a couple of morons will think your coconut candy is crack and throw you in jail for a week.

Whether or not refusal prevents the search is beside the point here (although, yes, refusal often prevents the search). Such cases are less likely to be prosecuted, even after evidence is discovered, due to the fact that police and prosecutors do – believe it or not – sometimes recognize a constitutional violation and decline to proceed simply because they don’t want to bring a messy case into the courtroom. Finally, consider how much more impressive a civil suit would look in this case with an illegal search thrown into the mix along with the already-compelling story of spending days in jail over coconut candy.

We'll never know how things would have turned out if these guys had refused the search, but there's no question what happened when they agreed to it.