Hello friends. Today I want to take off my journalist hat, and put on my lawyer one. While I don’t practice law currently, I did graduate Law School and I worked as a clerk, lawyer, and courtroom staff for many years. During this time, I worked with criminal, family and juvenile law, which is all to say, what I want to share today comes from a place of some knowledge and experience. When dealing with law enforcement is it very important to know your rights, and I hope that some of the information here is helpful.
First off, a caveat. It is more likely than not that your knowledge of your rights will not deter police who are violating them. More often than not, they do not care, and they will often (not always mind) use any pretense to violate your rights. That’s infuriating, I know, but it’s a fact that any criminal defense attorney will confirm. The police care about getting to their objective, which is an arrest or ending a protest, more than they do about the rights of their victims.
But the existence of a pandemic or a curfew or bad cops doesn’t mean the Constitution stops working. So here’s what you need to know.
Understand reasonable suspicion and probable cause.
Under the fourth amendment, which protects us from unreasonable searches and seizure of our person and spaces, cops need a justification to detain and search you. This is either reasonable suspicion or probable cause. To hold someone briefly and pat them down, a cop needs to have reasonable suspicion of a crime. That’s a lower standard than probable cause, which is what a cops needs to detain you.
Sidebar, this also applies in your home. Just as they cannot detain you without probable cause, police cannot enter your home against your will without a warrant. If an officer wants to get inside, calmly ask if they have a warrant. If the answer is no, be silent, close the door, and lock it. Again, record this if you can.
Know a protest will have special circumstances.
Now, in cases like the on-going protests and demonstrations, the cops will use what’s called “pretext.” Violating a curfew can be a pretext for a stop, just like having a busted tail light. They will use anything to justify detaining you, but they can’t transfer their probable cause from one thing to another. I.e., they can’t use their probable cause to detain you for violating a curfew to search you, unless they have separate reasonable suspicion you’re armed.
This is what a cop needs to detain you, and it will be easy for them to establish that at most of these protests. Right now cops and judges are even saying there are special exigent circumstances that justify stops and detentions. This is probably untrue and unconstitutional, but that’s something that doesn’t matter at the moment. All you need to focus on is the current situation and what you can control. Once you’re detained, important rights kick in.
Ask “Am I being detained?”
If there is one thing I want you to remember, it is to ask any cop that wishes to speak with you “Am I being detained?” or “Am I free to go?” When a cop says no, or indicates in any other way that you’re are not free to go (either by show of force or otherwise), your constitutional rights truly kick in. It is imperative though that you ask this and if possible, get the refusal on video.
If the cop says you are free to go, leave safely and calmly. That’s it. If they don’t let you, you’ve been detained. This is risky, of course, and I leave it to you to decide how to leave, but it is your right to leave. If you are a white or non-Black ally and observe a cop speaking toa Black person, you can be the one to ask this and place yourself between them and the cop and allow them to leave. Use your privilege.
If you are not free to go:
Be silent. Seriously, don’t say anything else.
Now, a cop can talk with you like any other person. That’s fine and they don’t need probable cause or reasonable suspicion to ask you a question. But you are under no obligation to reply. If they attempt to pressure you to speak, see above and ask if you are free to go. If you’re not, your right to remain silent has kicked in.
In a perfect world, a cop must tell you about this right, and other Miranda rights also kick in. You can ask for a lawyer and assert your fifth amendment right against self-incrimination. It’s as simple as that.
Don’t be fooled or intimidated into talking with police. If they do read you your rights, talking with them is a waiver of those rights, meaning, as the spiel we all know goes: “anything you say can and will be used against you.” Now, if they don’t read you those rights and you are detained and speak … what you say can’t be used against you. But please don’t risk that. Stay silent.
Do not resist.
If you are subject to a search or detention, do not touch or antagonize the police. Do not fight. This isn’t to say that it wouldn’t be cathartic to fight, or that it wouldn’t feel justified in many of the brutal situations we’ve witnessed from the police, but resisting arrest and assaulting an officer are crimes on their own.
Use your knowledge and privilege.
Share this, and share this knowledge. If you are preparing to protest, make sure everyone that you are with knows the basics: ask if you’re being detained and be silent otherwise. I’ve said it once but it bears repeating: If you are at a protest and you are white, it is on you to use that privilege. Use your knowledge and intervene if you have to, it could save a life or make a difference. Use that privilege when dealing with police and if you see misconduct.
Asserting your rights may not make an immediate impact. You may still be arrested. But knowing that you do not have to speak could make the difference between arrested and convicted of a crime, and that’s a big deal. And understanding that you do not have to speak with or interact with a cop if you are not being detained could keep you out of jail completely.
Be safe out there.
(JIM WATSON/AFP via Getty Images)
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