scottmorgan's blog

On Wednesday, Flex Your Rights brought together numerous allies, volunteers and friends to protest random searches on public transportation in the Nation’s Capital. The effort was aimed at voicing opposition to the new search policy, while educating the public about the 4th Amendment right to refuse police searches.

The event generated considerable media attention, including the Washington Post, the Washington CityPaper, and local ABC and NBC affiliates:



Thanks so much to our friends at the Electronic Privacy Information Center, Law Enforcement Against Prohibition, StoptheDrugWar.org, Students for Sensible Drug Policy, and all the volunteers who came out and made this effort a success.

The constant emergence of new threats to our civil liberties is a difficult thing for any freedom-loving citizen to behold, but this unfortunate event also provided a unique opportunity to educate the public about 4th Amendment rights, and that’s exactly what we did.

In response to the random search program announced yesterday by the Metro Transit Police, we've prepared this handy guide to protecting your rights when using public transportation in the Washington, D.C. area.

We'll also be organizing some volunteers to help distribute flyers about the program at various Metro stations. Please contact us if you're interested in helping out.

Alas, the looming specter of subway searches has finally descended on our nation's capital. We've long assumed it was just a matter of time, but as time came and went, it seemed the tragic fad of frivolous subway searches would elude us. Unfortunately, we were wrong.

Metro officials announced today that they will begin randomly inspecting backpacks, gym bags and any other containers that riders carry with them onto the bus and rail system, in an effort to deter possible terrorist attacks.
…
In the searches, transit police will choose a random number ahead of time, such as 17. Then they will ask every 17th rider step aside and have his or her bags searched before boarding a bus or entering a rail station.

Police said the inspections would take between 8 to 10 seconds. Those who refuse will not be allowed to enter the system with their carry-on items but will not be detained. [Washington Post]

Our foremost objection to such a program stems from the inherently objectionable notion that citizens must waive constitutional rights and prove their innocence in order to use public transit. Too many citizens remain unaware of their basic constitutional rights regarding search and seizure, a problem that is reinforced considerably when they are subjected to arbitrary police search requests in their daily lives.

Our frustration is compounded, however, by the obvious limitations of such tactics in actually preventing terrorism. We have no doubt that extraordinary numbers of innocent citizens will be subjected to privacy invasions by police, but we fail to understand what role this program can play in protecting the public. The searches are a purely symbolic measure, targeting a small minority of passengers and utterly lacking the tactical deployment that would be necessary to prevent a determined attacker from entering the system.

Comically, the WMATA itself barely even attempts to defend the efficacy of the program in its own FAQ:

Will this really make a difference?
Yes.

That's all they could come up with. The program will work because they say it will. This one word answer is the full extent of actual justification offered in defense of a program that curtails the 4th Amendment rights of millions of innocent Americans.

Once again it has become necessary to remind one another that it is these rights – the fundamental freedoms guaranteed by our constitution – which our enemies seek to destroy. Any attempt to defend our bodies and our buildings, without also defending our basic freedoms, is nothing but a disgraceful surrender to those who wish us harm. Can there be any doubt that our ritualistic implementation of dubious and invasive public safety programs is viewed by terrorists as a measure of their success?

With all of this in mind, we present The Citizen's Guide to Refusing DC Metro Searches.

People who’ve had bad experiences with police have sometimes responded negatively to our materials, arguing that police will simply take things to the next level if you refuse a search. Here’s an interesting example from Florida, in which police were forced to drop the charges after wrongfully arresting a suspect who refused a search:

Pensacola City Council candidate Jeffrey A. Humbles will not be prosecuted in connection with resisting a law enforcement officer, the State Attorney's Office said.

The decision was made Wednesday after investigators with the State Attorney's Office finished reviewing his case.
…
A Sheriff's Office report regarding the incident said a K-9 unit alerted on Humbles' vehicle, indicating the possible presence of narcotics. The dog's action gave deputies probable cause for a search, Escambia sheriff's spokesman Glenn Austin said.

After Humbles refused multiple times to give deputies keys to his locked vehicle, he was arrested on a charge of resisting a law enforcement officer without violence.

Once in custody, Humbles gave his keys to deputies, who opened the locked vehicle and searched it. No narcotics were found, the sheriff's report said.
…
Humbles said deputies violated his civil rights by searching his locked vehicle. "The Constitution is there to protect everyone, and it works," he said. "Those words have value and meaning, and we need to keep them alive to protect our rights.

"We have the right to privacy and the right against illegal searches and seizes. And that makes us America. That's what make this country great." [Pensacola News Journal]

We couldn’t agree more. In this case, Humbles could probably have avoided some hassle by simply letting police have their way. Instead, he stood up for his rights and was vindicated in the end. Even though he had nothing to hide, he understood the importance of asserting his rights. After all, it’s always possible that a careless friend left something in the car. You can never be 100% sure, even if you never break the law.

Now he has a solid wrongful arrest lawsuit, if he chooses to pursue it. And, at the very least, he taught the police that even law-abiding citizens like himself are willing to stand up for their rights.

Constitution Day is an opportunity to celebrate the fundamental rights and freedoms we enjoy as Americans. But for many, it also provides an occasion to take note of all the ways in which the promise of liberty handed down by our forefathers has been broken time and again as our criminal justice system grows sufficiently enormous to terrify even the best-behaved among us.

True as that may be, Flex Your Rights has always believed that the long-term survival of our basic constitutional rights can be realized only by understanding, appreciating, and exercising them. That’s why today, we thought it would be appropriate to share a few of the wonderful 4th Amendment success stories our supporters have shared with us:

I was driving from New York to D.C., and I was pulled over going through Baltimore. The officer asked if I knew why he pulled me over. Having recently seen Busted, I made it a point to say, "I don't know," instead of "speeding." He said he wasn't going to write me a ticket, but wanted to search the car because they "were seeing a lot of drugs going through the area." I told him I was in a hurry and really didn't feel it was necessary. He tried to get all buddy-buddy and make it seem like I should "just help him out." He said his boss really wanted them to be checking cars, so he'd "really appreciate it." At this point, I said I did not wish to consent to a search and asked if I was free to go. He said "yes" and I drove off.

Mason T.
Denver, CO

We had a Know Your Rights training (and showed Busted) for the American Indian Community at the IndianWorks community center. One woman who attended told us that her son and his friends were being harassed by a police officer assigned to his high school. The officer stopped them repeatedly when they hung out after school and constantly demanded to search their bags. Although her son was not at the training, she was eager to show him the information and she went home and ordered Busted off the website.

She called a month later to say that when the officer stopped her son and his friends as they walked home from school and demanded to search their backpacks, her son said, "Officer, am I being detained or am I free to go and I do not consent to a search" all in one sentence. The cop turned red in the face but returned to his squad car, sped off and has not bothered them since. With such great results, the mom has been showing Busted to all of the neighborhood youth.

Michelle G,
Minneapolis, MN

Just two days ago I had an unfortunate run-in with the police. They were already in my house, to respond to an emergency that my friend was having. Due to the nature of his emergency, they requested a search of my house. Immediately, everything from Busted came rushing back. I think the only things I said (and repeated) were "I do not consent to a search", "Are we free to go to the hospital now?" and "I think I need to contact my lawyer." When I said "lawyer" the cop backed off. But I just couldn't believe how astounded he was that I refused the search. He insisted that it meant I had something to hide over and over. And, too, the use of silence really came in handy. I have never been in a situation like that before, especially with the cops already inside my house. So, thanks for Busted. That truly saved me. It was the only thing I thought of the entire interrogation. Things could have turned out differently otherwise.

Stephanie H.

You can read many more of these here.

New FBI data shows that more people were arrested for marijuana last year than ever before. It’s a harsh reminder that police still spend a lot of time and resources trying to catch people with small amounts of pot.

Flex Your Rights isn’t a "marijuana legalization" group, although you’ll probably never find us expressing adoration for the government’s massive war on marijuana. Rather, it is simply impossible to carry out our public education work each day without recognizing the role these laws have played in traumatizing peaceful Americans and creating an enduring demand for basic know-your-rights resources.

It's not just a question of guilt or innocence, or of whether someone uses marijuana or does not. The reality is that so often when police focus their energy towards the lowest & broadest rung on the criminal ladder, there will be collateral damage and opportunity costs. Critics of our work have often argued that, "If you have nothing to hide, you have nothing to worry about." But alas, a law-enforcement campaign of such magnitude can’t possibly be conducted in such a way as to avoid constantly inconveniencing and even falsely convicting the innocent. It happens all the time, which is exactly why all Americans must know their rights as long as this war continues and regardless of whether an individual actually ever uses or possesses marijuana.

This story from New Orleans shows how great the stakes can be during even the most routine encounter with police. Suppose a friend carelessly leaves a little pot in your car…

The flood of new felony charges didn’t target murderers, rapists or armed robbers — they targeted small-time marijuana users, sometimes caught with less than a gram of pot, and threatened them with lengthy prison sentences.

The resulting impact has clogged the courts with non-violent, petty offenses, drained the resources of the criminal justice system and damaged low-income African-American communities, [Orleans Public Defenders Office Chief of Trials Steve] Singer said.
…

A first-time marijuana possession charge in Louisiana is a misdemeanor punishable by up to six months in prison but typically results in a small fine. A second offense is a felony that can carry up to five years in jail and a third offense up to 20 years.
…

Some say Landrum-Johnson’s decision to buck history and charge marijuana users with felonies is a political decision meant to assist in her run for Orleans Criminal District Court Section E judgeship. By prosecuting thousands of marijuana possession cases as felonies, Landrum-Johnson can then go to the voters of New Orleans and claim she is "tough on crime," [Tulane University criminologist Peter] Scharf said. She can point to the massive increase in felony prosecutions under her tenure without explaining that those prosecutions were for people holding joints and not guns, he said. [New Orleans CityBusiness]

All of this serves to illustrate the magnitude of the injustices still taking place in our criminal justice system on a daily basis. Laws vary from one place to the next, as do the personalities of the people enforcing them. It is not uncommon for disturbingly harsh penalties to remain on the books unenforced, only to one day be thrust upon an unwitting offender at the whim of a politically motivated prosecutor. Even in regions where marijuana enforcement is notoriously lenient, such as the west coast, one can still lose federal financial aid for college based on a minor possession conviction. Moreover, marijuana itself is ubiquitous, creating limitless potential for it to be found in the vicinity of innocent people.

So knowing your rights isn't just for pot-smokers (although any American who enjoys marijuana should know the 4th amendment like they know their own name). The point is that the volume of unjust outcomes produced by our criminal justice system remains far too great for that system to be regarded as infallible by any sensible person. The fact that a law exists which authorizes a 5 year felony sentence for second-time marijuana possession and that prosecutors are actually enforcing that law ought to more than establish the deep fallibility that often characterizes the administration of justice in our nation.

In this climate, asserting your rights is not a perfect or foolproof solution, but it is indeed the method by which our forefathers intended for average people to shield themselves from government abuse. And it often works beautifully. So as we wait for meaningful and lasting reforms to finally purge our criminal justice system of the gratuitous disparities and injustices that continue to fester before our eyes, at least we know what to say when the long arm of the law swings in our direction: "Officer, I don't consent to searches. Am I free to go?"

Since many of our supporters may be skeptical of NYPD when it comes to matters of search and seizure, I'd like to clarify that this is a very good thing:

The New York City Police Department wants suspects to sign a consent form before searching their homes or cars, a move that eliminates the need for a warrant and is meant to provide police a layer of legal protection, Newsday has learned.

The initiative was put in place because consent searches are often challenged at trial - and jurors too often believe the suspect's claim that police never got permission to conduct the search, police sources said.

At the same time, sources said, there has been concern within the NYPD about a handful of cases in which an officer's truthfulness was recently called into question. [Newsday]

Written consent policies are a win-win situation for police and the public. When consent is given in writing, police have an easier time demonstrating in court that consent was given voluntarily. Since evidence seized during a consent search is almost always legally admissible, defendants challenging such evidence must argue that consent was given involuntarily or not at all. As a result, police spend a considerable amount of time in court defending the manner in which consent was obtained. A written form goes a long way towards resolving such conflicts.

For the citizen, written consent provides a quick reminder that permitting searches is optional, while simultaneously creating an added layer of protection in disputes over whether consent was given voluntarily. The form will go a long way towards resolving widespread concerns about police erroneously claiming to have received consent before conducting a search.

Finally, there's an additional important point illustrated here. As Newsday reports, "jurors too often believe the suspect's claim that police never got permission to conduct the search, police sources said." For anyone questioning the viability of refusing consent during a police encounter, this should go a long way towards explaining how asserting 4th Amendment rights can help citizens achieve a more desirable outcome. It serves as a helpful reminder that, even if police violate your rights and search despite your refusal, any evidence they discover can be effectively challenged in court. Obviously, this is a frequent occurrence if NYPD cites such outcomes as a reason for moving towards a written consent policy.

Given the significance of the citizen's decision whether or not to permit police to look through his/her belongings, a written form is just the obvious, common sense approach to establishing whether consent was given.

Update: Pete Guither at DrugWarRant has a good post discussing the NYPD policy and explaining why it is never in the citizen's interest to consent to a police search.

Check out this comment on our blog, which accuses Flex Your Rights of compromising police work by helping serious criminals evade prosecution:

"With no physical evidence, no ability to interview the suspect, no ability to conduct a warrantless search, and no ability to develop probable cause for a search warrant, how will an investigator successfully prosecute a rape? a murder? a robbery?"

I understand that concern, but there's a simple reason why it's far overblown. The crimes that take the biggest toll on our communities aren't solved through warrantless searches. Police who are investigating a rape, robbery, or murder aren't using consent searches to investigate their suspects. Overwhelmingly, consent searches are used to attempt to discover crimes that weren't known until the search was conducted. They have absolutely no impact on clearance rates for reported crimes.

With regards to the 5th amendment right against self-incrimination, police must give Miranda warnings before conducting a custodial interrogation anyway. Regardless of our information, or the Miranda warning, many guilty suspects will continue to confess when confronted with the evidence against them.

The situations in which our advice to remain silent is more likely to make a difference is in cases in which the police suspect a crime may be afoot, but don't have evidence and must intimidate the suspect into self-incrimination, i.e. "If you have drugs, we're gonna find 'em. You might as well just hand it over and we'll go easier on you." Again, this will have no effect on clearance rates for reported crimes, except, ironically, to the extent that this type of policing draws resources away from investigating unsolved violent crimes.

There are exceptions, of course, and the possibility that a guilty person may evade prosecution for a serious crime by asserting constitutional rights always exists regardless of our website. That's a risk our forefathers took when drafting a constitution that's designed to make it very hard to convict the innocent. Sometimes the guilty must go free in order to preserve the integrity of our constitutional principles and protect law-abiding citizens from the potentially life-changing consequences of being in the wrong place at the wrong time.

I could go on all day about this, but the best evidence that our work isn't undermining good police work is that police aren't opposed to it. Many officers actively support the work that we do here. They do not, for the most part, share this dismal assessment of the potential harms contained in public know-your-rights education, for the reasons listed above, among others. We've gotten a few angry emails from law-enforcement, but far more that are appreciative. Our supporters include former Seattle Police Chief Norm Stamper, former San Jose Police Chief Joseph McNamara, National Black Police Association President Ronald Hampton, and many other current and former law enforcement professionals.

Good police work seldom requires that the suspect foolishly waive constitutional rights or recklessly incriminate him/herself. We've accompanied on-duty law-enforcement around Washington D.C. and observed urban police work first-hand. At no point did 4th or 5th amendment protections become an obstacle to the officers we spent time with, and we dealt with some very serious incidents.

In sum, we've put a considerable amount of thought and research into the implications of our work and concluded that the benefits far outweigh the potential costs. Over the past five years, that conclusion has been thoroughly supported by the feedback we've received from both police and the public.

This is creepy:

AKRON, Ohio - A medical examiner must change her autopsy findings to delete any reference that stun guns contributed to the deaths of three people involved in confrontations with law enforcement officers, a judge ruled.

Friday's decision was a victory for Taser International Inc., which had challenged rulings by Summit County Medical Examiner Lisa Kohler, including a case in which five sheriff's deputies are charged in the death a jail inmate who was restrained by the wrists and ankles and hit with pepper spray and a stun gun. [kstar.com]

I can't speak to the specific cases at issue here, but we're hearing more and more about this dubious "excited delirium" diagnosis that's being offered when people die in police custody. Drug use is often a factor, thus we must consider the possibility that tasers, though not typically lethal, may pose heightened risk of fatality when used on people who are under the influence. After all, people who are super wasted are among the most likely recipients of a thorough tasing by police.

I wouldn't want tasers to be erroneously identified as a cause of death, but as fatal outcomes involving these weapons are reported with increasing frequency, it's clear that more research is needed. In the meantime, scratching these weapons out of autopsy reports sounds to me like the opposite of what we should be doing to address growing concerns about their alleged safety.