Defenders of the strict new immigration law claim that the law’s reasonable suspicion requirement will prevent abuses. This argument gives Cato Institute scholar and Flex Board of Advisors member Tim Lynch his own reasons to be suspicious.
The police are going to ask questions and request to see papers in a variety of circumstances — whether they have reasonable suspicion or not. From a legal, constitutional, and practical perspective, the key issue is this: What are the consequences, if any, for the person who stands his ground and declines to answer questions or declines to produce identification papers? If a person declines, will the police back off and say, “Well, that is your right, sir, you may go” or will the police escalate the situation by ordering the person to answer questions, ordering the production of identification, detaining the person, or threaten the person with arrest on bogus charges?
Lynch digs deeper into the practical dilemma faced by laypeople attempting to Flex their rights.
The police are trained to blur the line between “voluntary” interactions with people (perfectly lawful) and “involuntary” interactions with people (where police power is limited by the Constitution). So, for example, if a police agent says, “Okay pal, let’s see what’s in the backpack!” it is unclear whether the officer just made a request (lawful) or issued an order (for my purposes here, unlawful). The onus here is on the layperson to speak up if he does not wish to voluntarily consent to a search: “Officer, I don’t consent to any searches.” Upon hearing that, the officer will either (a) retreat; (b) clarify that he was ordering, not asking; (c) press the person some more to consent. A dishonest officer can just lie and deny what you said — and if that matter goes to court the outcome will depend on who the judge believes.
Of course, cameras don’t lie. But be careful how you go about videotaping police.