Steven Silverman's blog

Rachel Hoffman: Another Reason to Know Your Rights

2008-07-30T05:31:36Z

ABC's 20/20 covers the tragic death of 23-year-old Florida girl, Rachel Hoffman. Caught with what the Tallahassee police chief described as "about a baggie" of marijuana, she was tricked/blackmailed/threatened into becoming a police informant.

The chief blames Rachel for her death, repeatedly calling her a drug criminal. But it is clear that he is a scoundrel defending incompetent, callous officers who sent a sheep into a lions' den.

As I think of Rachel, I can't shake the terrible thought that a little know-your-rights education could have saved her life.

"Don't Talk to the Police" by Professor James Duane

2008-05-28T11:09:18Z

Professor Duane from Regent Law School has a speaking style similar to Regis Philbin on methamphetamine. As a result this compelling 27-minute lecture flies by.

Duane cites multiple examples of how intelligent and powerful people have fallen prey to their mistaken believe that they are equipped to speak to criminal investigators. However, the most notable portions of the lecture are when he describes how easily a police interrogator's misrecollection can be used to crucify a perfectly innocent suspect who tells only the truth.

[Thanks to Tim Lynch for the tip]

No Warrant, No Search [Video]: Flex Goes Door-to-door with DC ACLU

2008-04-22T11:27:44Z

A couple weeks ago Scott and I joined the National Capitol Area ACLU for a door-to-door outreach effort in Southeast D.C. warning citizens about a "knock and talk" program the DC Police Department threatened to implement.

This short video, which was my first behind-the-camera creation, tells the story:

I couldn't have scripted this much better: At about 1:35 into the video, a woman mistakes us for the police and eagerly invites us in to search her home. It's funny, but it proves our point about why this information is needed. (For all she knows, someone could have left some marijuana under her couch cushion for an officer to find and get
her and her family kicked out of public housing.)

Responding to the unexpected public backlash generated through such community outreach, DC Police Chief Lanier recently announced that her so-called Safe Homes initiative would be scaled back. Under the new plan, police
will not go door-to-door requesting consent. Citizens wishing to be searched must instead call the police and invite them into their homes.

In other words, the good guys won, and Chief Lanier was left to take the blame for her hare-brained initiative.

For a refresher on how to refuse home searches, watch this.

No thanks, Officer. I'm not interested in your free home search offer.

2008-04-03T08:50:09Z

This Saturday the National Capital Area ACLU is organizing a training day to educate the community on how to prevent warrantless police searches of their homes. Scott Morgan and I will be there representing FyR, and I'll try to get some interviews with my new video camera that I'll post online.This event is in response to MPD's new "Safe Homes" initiative, which sends officers out to act as door-to-door canvassers asking residents to voluntarily let them search their homes for illegal guns. (FYI: Until the SCOUS rules otherwise, handgun possession in DC is a felony). Needless to say, many residents aren't appreciating these unsolicited offers. Oh yeah, if the police are at your door, be like Valerie.

Plaintiffs Wanted for Right-to-Record-Police-Officers Case

2007-12-21T07:45:57Z

Eugene Volokh, of The Volokh Conspiracy got this request from Michael Rosman at the Center for Individual Rights writes:Like many of your readers, I was intrigued by your recent post concerning the conviction of individuals for taping or videotaping police officers while the officers are doing their job in public. Some of your readers thought that there may be some federal constitutional problem in laws that make such tapings illegal. My employer, the Center for Individual Rights, is interested in possibly representing individuals who want to challenge such laws as a violation of constitutional rights.Ideally, a potential client would be a person or organization that legitimately is concerned about being arrested for taping police officers, or who would engage in that conduct were it not for a law making it illegal. Obviously, it would have to be in a state where the law makes that concern reasonable. (Your post referred to Massachusetts. We believe that Pennsylvania may be another such state, although the law there is more in flux.) Someone who has already gotten in trouble for violating such a law is fine, but we would not be the best lawyers to represent someone currently involved in an ongoing criminal or civil proceeding in state court.If any of your readers are among those who would like to challenge a law of this kind, or can help us identify the states where such laws exist by giving us cites to relevant statutes or cases, (s)he can email me at rosman [at] cir-usa.org.

Severe Police Tactics in Suburbia

2007-12-19T09:28:46Z

I'm about to dive into a three-part series in The Philadelphia Inquirer investigating heavy-handed policing tactics in suburbia.
It makes me proud that my hometown paper has the balls to allow writer Mark Fazlollah to delve so deeply into a chronically underreported social problem.

Videotaping Police Should Never Be a Crime

2007-06-21T05:45:43Z

Radley Balko, one of our favorite fellow constitutional fetishists, has an informative FoxNews.com piece on the legality of videotaping police encounters. For those of you who are unsatiated by our FAQ about videotaping police, this should hit the spot.

I wonder: Aside from law-breaking officers, who benefits from laws prohibiting the videotaping of police officers?

Don't Get Nifonged

2007-06-19T09:01:12Z

If anyone has any lingering doubts about why you need a lawyer if you're under police investigation, check out this revealing video of Mike Nifong's testimony before the North Carolina State Bar disciplinary committee. For the video impaired, here's the transcript:Committee Guy: Do you recall making statements to the media in the early part of this case about the players' wall of silence or something to that effect?Nifong: Yes, sir. I do.Committee Guy: And do you remember making statements about if they didn't do anything why did they need a lawyer?Nifong: Yes, sir. I do.Committee Guy: And other matters about them exercising their right not to testify. do you remember making those statements.?Nifong: Um, I not sure specifically about testifying. But I do remember making statements to that effect. Yes, sir.Committee Guy: And are those statements you could have made to a jury?Nifong: No, sir. They are not.Committee Guy: Did you think through that process before you made those statements back in the beginning of March?Nifong: Clearly not as much as I should have...I was certainly not intending or attempting to make improper statements, but I think clearly some of the statements I made were improper.Committee Guy: Were violations of the rules of professional conduct?Nifong: I would have to say so at this time. Yes, sir. Is it any surprise that "Nifonged" is now a popular neologism?

Prosecutors: Not as Nice as You Thought

2007-06-19T07:43:18Z

On Thursday, Scott and I attended a book discussion, signing and reception hosted by the Open Society Institute. The event featured Friend-of-Flex, Professor Angela J. Davis speaking about her new book, Arbitrary Justice: The Power of the American Prosecutor. In light of the Nifong imbroglio, the timing of her exposé is perfect.As the former director of the esteemed DC Public Defender Service, Davis is a master player and observer of the vicious game that is the U.S. criminal justice system. By her own admission, she's "obsessed with prosecutorial power."Her intent with Arbitrary Justice is to show how prosecutors have become the most powerful officials in the criminal justice system. In particular, Davis digs into the brutal arbitrariness of prosecutorial power and the utter lack of accountability for rampant prosecutorial misconduct.The Nifongs, Davis insists, are common. The real story behind that case is that prosecutorial misconduct happens all the time and is rarely exposed. A disproportionate number of the victims are people of color; all of them lack the resources of the falsely-accused Duke lacrosse players.Despite her intimate knowledge of the system, Davis seems stunningly devoid of cynicism and proposes practical prescriptions for change. She insists that folks who become prosecutors are not necessarily consciously racist or prone to evildoing. When she declared that her book wasn't meant to be an attack on the prosecutorial profession, someone hilariously heckled, "I want my money back!"Davis is correct: Prosecutors aren't inherently bad; the system is bad. And bad outcomes thrive in any system where incentives are twisted. Such is today's criminal justice system, which rewards prosecutors who win convictions more than those who competently administer justice for justice's sake.Davis identifies the major contributors to the system's dysfunctions:Mandatory Minimum SentencingWhile prosecutors' plea bargain power has always provided them with lots of control over the outcome of criminal cases, their power to extract a plea -- and thus avoid a trial -- is intensified by the threat of mandatory minimum sentences. Ironically, mandatory minimums were passed at the state and federal levels with the intent of eliminating sentencing disparities. The effect has been to shift the sentencing discretion to prosecutors without eliminating disparities.Mandatory minimums have also been the driving force behind the exponential incarceration rates of the past two decades. The prosecutors haven't gotten nastier; their plea extracting tools have become increasingly menacing.Political ProsecutorsA typical campaign for state attorney general involves a "tough on crime" Democrat facing off against a "tougher on crime" Republican. The electorate then votes based on their political affiliation.Though these attorneys general are elected officials, few citizens know who they are or how they manage their offices. Moreover, because prosecutors have sole discretion over who gets charged and when, politically-motivated prosecutors frequently choose targets to enhance their political profiles rather than in the interest of justice.Lack of Transparency & AccountabilityProsecutorial misconduct is widespread and unchecked. Davis notes that "Much of what passes for legal behavior might in fact be illegal, but because prosecutorial practices are so rarely challenged, it is difficult to define the universe of prosecutorial misconduct."Ken Armstrong and Maurice Possley, the authors of a 1999 study of prosecutorial accountability concluded: "With impunity, prosecutors across the country have violated their oaths and the law, committing the worst kinds of deception in the most serious cases...They have prosecuted black men, hiding evidence the real killers were white. They have prosecuted a wife, hiding evidence her husband committed suicide. They have prosecuted parents, hiding evidence their daughter was killed by wild dogs."They do it to win. They do it because they won't get punished."The problem, as one editorial described it, "would be like trying to count drivers who speed; the problem is larger than the number of tickets would indicate." The problem is also difficult to quantify, because most of what the prosecutor does is behind closed doors. On the rare occasion when misconduct is discovered, judicial review is extremely limited."Of the eleven thousand cases of alleged prosecutorial misconduct examined by the Center for Public Integrity, the appellate courts reversed convictions, dismissed charges, or reduced sentences in just over two thousand. However, in these cases, most of the prosecutors suffered no consequences and were not held accountable or even reprimanded for their behavior."Davis also points to another mundane reason why prosecutors are rarely held to account: Few defenders are willing to "snitch" on a cheating prosecutor. Making nice with the prosecution is generally in their clients' best interests. After all, it won't be long before they have to beg the same prosecutor to cut a better deal for their client.It doesn't take a game theoretician with a PhD to appreciate how cheating would flourish in a criminal justice system where unscrupulous prosecutors are virtually immune from punishment and are rewarded with promotions and career advancement.Reform, Davis insists, should at minimum, seek to eliminate the arbitrary exercise of prosecutorial discretion and establish incentives to strengthen the existing mechanisms of prosecutorial accountability. And she does the heavy lifting of proposing practical solutions. An essential part of her reform plan is to educate the public about the duties and conduct of their elected prosecutors.It's too bad that the public only seems to pay attention when their prosecutors falsely indict innocent rich white kids for raping a black woman. Then again, if this incident lights sparks of nationwide prosecutorial reform, please pass the lighter fluid.

I Choose to Waive That Right!

2007-01-05T10:40:40Z

In a classic episode of The Simpsons, Marge joins the Springfield Police Force. On her beat she spots Homer's car triple-parked across three handicap spots. He is also buying booze for some teenagers.

As Officer Marge writes Homer a ticket, he snatches her hat and ridicules her. A crowd forms to watch the spectacle, and she has no choice but to arrest Homer. As she handcuffs him, Homer refuses to "flex" his rights in a perfectly hilarious way.

Today's New York Times has a great piece chronicling the heartfelt and exhaustively detailed confessions of sundry fools, thugs, and sexual predators who, like Homer, refuse to remain silent when it's in their best interests.

Frankly, I'm not tormented that most these folks decided to waive their 6th Amendment right to counsel. But I have some eye-rolling sympathy for the woman indicted on prostitution charges after writing in her confession form "I'm not a prostitute. I just hook guys up with girls if they want them."

Too bad she didn't practice what criminal defense lawyer Stacy Richman advises and every Flex Your Rights member knows: "You have a right to remain silent. Exercise that right."

Daniel J. Castelman, chief of investigations for the Manhattan district attorney, nails the precise reasons why people confess.

Almost nobody doesn’t talk. And the reason for that is that people think they can either talk their way out of it or mitigate the crime. It’s human nature.

As for the critics who condemn Flex Your Rights for promulgating information that might allow criminals to go free, please don't blame us; blame the Bill of Rights.

BUSTED: Over 1 Million Served

2007-01-05T10:15:54Z

As you may have heard, FyR Associate Director Scott Morgan and I have both been named Time Magazine's Person of the Year."

Okay, I'm being partially silly -- but Time's all-inclusive award is an homage to the potent new streaming video technologies that FyR has embraced. In 2006 our first video, BUSTED: The Citizen's Guide to Surviving Police Encounters, went "viral". Between BUSTED's presence on Youtube.com, Google Video, Myspace Video, and numerous other sites, we've exceeded 1 million viewers, and we're reaching thousands more every day.

When we created BUSTED over three years ago we knew the film would find an audience, but we never anticipated a measurable outreach opportunity of this size. The best part is that our new online viewers absolutely love the film. BUSTED has consistently commanded 4-star ratings on Youtube and Google video and we're currently ranked #80 Top Favorites of all time on Youtube.

Needless to say, it's now easier than ever for you to share this information with your family and friends. Our recommended online version of BUSTED is available here, and you're welcome to forward it far and wide.

Nobel Laureate & BUSTED Endorser Milton Friedman Dies

2006-11-17T06:39:27Z

One of the 20th century's preeminent economists and advocates for individual liberty died yesterday at the age of 94.

I first saw Dr. Friedman in a PBS video on free markets played in my high school economics class. What set the man apart from other brilliant thinkers was his uncanny ability to clearly communicate his ideas into simple terms. That attribute enabled his ideas to play out in an international arena.

We were fortunate to earn his endorsement of BUSTED, which can be seen on the back of the DVD. Interestingly, he gave us his plainly-worded endorsement based solely on his review of the screenplay. (I hope he took the opportunity to watch the complimentary DVD I sent him, but I'll never know for sure.)

He will be sorely missed and never forgotten.

Just Say 'No' to School Drug Searches

2006-09-18T09:43:32Z

In order to give public school teachers and administrators new powers to search any student at any time for any reason, Congress is trying to pass The Student Teacher Safety Act of 2006 (HR 5295).
The language of the bill is terribly sloppy and vague. If it passes, the bill could allow teachers to conduct searches of multiple students based on "colorable suspicion" (i.e. a hunch) that one student is carrying drugs.
Click here to learn more about the law, its potential consequences, and what you can do about it. (Tip o' the hat to our friends at Students for Sensible Drug Policy.)

Big BUSTED Blog Hit...& Run

2006-08-07T03:15:48Z

Props to Nick Gillespie at at Reason for a terrific BUSTED and Flex Your Rights plug on their renowned Hit & Run blog.

I'm particularly psyched because I'll be flying to the Reason in Amsterdam conference on Aug. 21 to hang out with Nick and other libertarian alpha-brains. (I also hope to ask speakers Trey Parker and Matt Stone -- the creators of South Park -- how they knew before everyone else did the extent of Mel Gibson insanity.)

It's a bit short notice, but anyone with the means and the spontaneity to make this trip should do it. You'll have the opportunity to engage some of the world's top thinkers by day, then forget everything you learn by night while indulging in completely legal activities. What more could you ask for!

July 4th Amendment Free Zone

2006-07-04T11:57:02Z

Dear Flex Your Rights Supporter:

I'll never forget July 4th, 2002 in Washington, DC. In the wake of 9-11, security required everyone entering the Mall area to be searched. Natuarally, I was loath to be searched, so I avoided the Mall and enjoyed the fireworks with some friends on the Virginia bank of the Potomac River.

When the fireworks were over, I said goodbye and walked toward the Key Bridge to return home to DC. As I approached the bridge, I saw a team of security police blocking the entrance.

The new July 4th Amendment Free Zone had caught up to me: I could not cross the bridge home that night unless I consented to a search of my backpack.

My cocky t-shirt only compounded my humiliation. The blunt text read "NOTICE TO LAW ENFORCEMENT OFFICERS: I do not consent to a search of my person, house, papers, effects or motor vehicle. I retain my 4th Amendment rights and all other rights under the United States and State Constitutions."

The young officer searching my bag couldn't resist a cheap jab. "That's an ironic t-shirt, huh?"

With my bag safely in my possession, I responded politely. "Isn't it ironic that the 4th Amendment is repealed on the day we celebrate our freedom?"

Part of me now regrets the pessimism of that retort. We at Flex Your Rights are happy warriors with little patience for constitutional Cassandras who proclaim "The 4th Amendment is dead!" But the realist part of me knows that the 4th Amendment is under steady attack by a President who routinely
flouts the rule of law and Supreme Court justices convinced that
"police forces across the United States take the constitutional rights of citizens seriously".

In addition, there's widespread constitutional illiteracy that leads seemingly educated people to ask me in conversation "Which one is the 4th Amendment?"!

FyR has been leading the way to combat constitutional illiteracy. (After all, it would be a heck of a lot easier to kill the 4th Amendment if nobody knew it existed!) And four notable online events have lead to an exponential expansion of our reach.

** Free BUSTED Version on YouTube.com **

The You Tube tracker shows 31,000 people have watched BUSTED, and we're averaging about 1,000 new viewers a day!

If you have some web skills, please feel free to upload BUSTED to your website or blog.

**Flex Your Rights Linked on Digg.com**

Last month our website was linked on digg.com, the 116th most popular website on the planet. The massive traffic to our site blew our servers for a few hours. But at the end of that day we received scores of new BUSTED orders and our site got 22,886 original visitors!

You'll see the post's lively discussion thread speaks well to BUSTED's educational power.

**BUSTED linked from BoingBoing.net, Ranked #24 on Google Video**

An anonymous poster uploaded a low-quality and incorrectly named version of BUSTED to Google Video, and the link was picked up by BoingBoing.net, the 3rd most popular blog in the universe. As a result, BUSTED rocketed up the Google Video charts to #24.

There is no view counter on Google Video, but it is likely that over 100,000 new people watched BUSTED! (Meanwhile, we've learned valuable lessons for when we promote PROFILED.)

**Flex Your Rights on MySpace**

Thanks to FyR volunteer Dain Roose-Snyder we've got a sexy profile with 400 cool friends. If you're on MySpace, send us a message. Become friends with Flex today!

I gotta go see some fireworks. Thank you for helping us improve citizens' constitutional literacy!

Sincerely,

Steven Silverman,
Executive Director

P.S. On this July 4th please remember FyR's work to preserve and promote the 4th Amendment.

Please consider making a small or large donation to support FyR's three-person staff. We continue to generate big results on a very lean budget, and your support will make a big difference now and for the future.

You can alos send a check or money order donation to: Flex Your Rights Foundation, 1623 Connecticut Ave. NW, 3rd Fl., Washington, DC 20009.