Having the privilege of living in a national security/police state, there is a very good chance that you will encounter cops sometime in the near future. If you are a minority, your chances will likely increase. Your chances will further grow exponentially if you do not rely on “our representatives” to determine your politics, and will be a given if you act on this.
At a recent legal workshop I attended, a public defender with activist experience explained this was because the criminal “justice” system is based on the assumption that there are law breakers “out there” in society who are adversarial to police officers and the “rule of law.” The majority of upright citizens must be protected from this minority of “deviant” law breakers. This results in the over-criminalization of those who simply appear to be outside the mainstream or norm, i.e. poor people, minorities, “activists,” “punks,” “hippies,” “pot heads,” etc. Further, the paychecks of cops depend on locking these “deviants” up.
The workshop facilitator shared a few general guidelines:
- Don’t trust cops; they frequently lie.
- Don’t talk to cops; they can use this to incriminate you.
- Don’t let them search; there is no reason ever.
- Don’t let them trick you; they will try.
- Don’t think cops won’t do <insert unlikely action>; they might and have killed people without any legal repercussions. Treat them like wild, dangerous animals.
At the workshop, I was surprised to discover that undercover cops (including informants):
- Are not legally required to identify themselves
- Have “special dispensation” to engage in illegal activities
- Are legally allowed to persuade you to do something illegal; this is because “entrapment” does not cover “deviants” who are “predisposed” to engage in illegal activity like minorities, “activists,” “punks,” etc.
There are three levels of interaction with cops in the U.S. legal system:
1. Mere encounter/conversation
Definition and restrictions: Cops are allowed to watch and ask you questions just like any other person you may happen to run into.
How you should respond: With a friendly “Sorry, don’t have time” or “I’m late, sorry gotta run.”
2. Detention (includes traffic stop)
Definition and restrictions: A verbal command or physical force to prevent you from leaving, it requires a “reasonable suspicion” that you are a criminal. Cops are allowed to “pat down” or look into your vehicle.
How you should respond: With a confident “Am I being detained?” If they answer in the affirmative, ask why. This demonstrates you have some knowledge of the legal system and will likely catch the cop off guard. Try arguing with the cop that it is unlawful to deny you for whatever justification they provided; the workshop facilitator said sometimes cops do not really understand the law and may let you go.
Definition and restrictions: Escalation and more permanent than detention, it is usually signified with hand cuffs or other means of restricting your movement. Arrest requires an “articulable probable cause” of why are you a criminal, i.e. the cop can’t just have “hunch” (unless you are of course a “terrorist,” which is a whole other article). Cops can search you and your possessions without a warrant, which they can get “special exemption” from.
How you should respond: Always respond with a respectful “I am going to remain silent and I would like to see my lawyer.” If you are asked to consent to a search, hand over a bag, or unlock a door, always respond with a clear “I do not consent to a search.” There is no reason to consent and things that you may have forgotten about or do not know may be used to incriminate you, for example a pocket knife. More importantly, if you refuse a search and cops go about it “unlawfully,” which is really technical, they may not be able to admit the evidence they find in court. Do not start speaking afterwards for any reason as this will invalidate your right to remain silent. If you do accidentally start to speak, you can repeat that you are going to remain silent again. Cops often “check back in” to see if you still are going to remain silent, which leads us to interrogation, which legally falls under arrest but requires its own category for elaboration.
Cops often try to interrogate even though suspects invoke their right to remain silent and ask for a lawyer. They are also widespread reports of cops employing shady tactics. Prepare yourself for:
- The usage of stereotypes and common fears (threatening torture or putting you into a “gang holding area”) in order to get you to talk and thus invalidate your right to remain silent.
- Emotional games like “good” empathizing cop versus threatening “bad” cop
- Cops lying and telling you that your friends are ratting you out in order to set you against each other and get you to talk. A common method is the “walk by,” which consists of transferring your friend to another area while you look on from an interrogation room making it look your friend is actually going free because they cut a deal (see the great movie In the Name of the Father for an example).
Some further challenges to my Hollywood-informed legal IQ I learned:
- If you are a passenger in a car that the police stop, you are legally allowed to walk away without detention.
- You do not have to carry an ID or identify yourself to cops, unless you are operating a vehicle. This does not mean you can lie (see below), but a common tactic for arrested activists is to not identify themselves all together and eventually get released en masse as “John & Jane Does.”
- All of the above also applies to federal agents with the added precaution that it is a felony to lie to them. Depending on local laws, it may also be illegal to lie to local police. FBI officers will frequently find out as much info about you as they can and ask you very basic questions they already know the answer to, like “Do you know this person?” or “Where were you on..?” They will then use your forgetfulness or seemingly white lies to build up their case against you, add on charges, and demonstrate to a jury that you are untrustworthy.
- Much of the above advice is complicated if you are caught engaging in illegal activity, like using/buying illicit drugs, shoplifting, even jaywalking. Many safeguards, like being able to refuse a search, are often invalidated.