How to Flex Your Rights During Police Encounters

The town of Homer, Louisiana is embroiled in a racially-charged controversy after a white police officer shot and killed an elderly African-American man in front of his family and friends. Witnesses say police planted a gun on the victim after shooting him and federal investigators are now working overtime to sort the whole thing out.

Of course, questionable police shootings and allegations of severe misconduct are tragically common and it will be interesting to see what the investigation uncovers. What really shook me up about the story was a quote from Homer Police Chief Russell Mills, who was asked about his department's treatment of minorities:

"People here are afraid of the police," said Terry Willis, vice president of the Homer branch of the National Assn. for the Advancement of Colored People. "They harass black people, they stop people for no reason and rough them up without charging them with anything."
That is how it should be, responded Homer Police Chief Russell Mills, who noted the high rates of gun and drug arrests in the neighborhood.

"If I see three or four young black men walking down the street, I have to stop them and check their names," said Mills, who is white. "I want them to be afraid every time they see the police that they might get arrested." [Los Angeles Times]

Arrested for what? Being black? A professional police department should not be a source of intimidation for citizens who've done nothing wrong. It's just an appallingly racist and inappropriate remark coming from the chief of police in a town plagued by racial tension. Chief Mills's mentality pretty much tells you everything you need to know about how things got this bad.

Skeptics in the debate over racial profiling will often begin by telling you that police never use racial profiling, then conclude by implying that black people are all criminals who must be stopped and searched at every opportunity. It's an absurd contradiction. As long as I can still find police chiefs publicly boasting of racial bias in the newspaper, I fail to understand how anyone could claim racial profiling isn’t a serious problem.

Today’s Supreme Court ruling in Herring v. U.S. provides yet another opportunity for us to put a bad ruling in perspective. Like most recent 4th Amendment cases decided by the Court, Herring is an unfortunate finding, but it’s not going to change our advice on handling police encounters.

Bennie Dean Herring was known to local police, who spotted him at the impound lot where he was retrieving an item from his impounded truck. An officer confirmed that Herring had a warrant in a neighboring county and arrested him, in the process discovering methamphetamine and a gun. Moments later, the officer learned that the warrant was erroneous, thus the arrest and subsequent search were invalid.

The Supreme Court found that because officers legitimately believed a warrant existed for Herring’s arrest, their actions were justified and not subject to the exclusionary rule, which prohibits the use of illegally obtained evidence. This is called the "good faith" doctrine, wherein police actions are upheld if officers believed they were acting legally (even if they were not).

The "good faith" doctrine is nothing new, so the Court’s decision isn’t particularly shocking. The Court argues that the exclusionary rule is intended to deter police misconduct and shouldn’t be applied here because the officers didn’t willfully do anything wrong. The dissent argues, and I agree, that the exclusionary rule is a perfectly appropriate means of deterring police agencies from keeping bad records that cause illegal arrests. If there’s no penalty for using bad information, then police have no incentive to keep their books in order. Worse yet, I could envision situations in which police manufacture "good faith" circumstances by preemptively withholding relevant facts from the arresting officers.

The exclusionary rule is vital to the interests of justice and we regret any ruling that reduces the citizen’s protection against illegally obtained evidence. That said, we hope the public will recognize that today’s decision is based on a specific set of circumstances and does not mean that police can now perform illegal arrests at will. The 4th Amendment continues to protect citizens against illegal searches, particularly in common scenarios such as searches that follow a refusal of consent. There’s no question that the Supreme Court is disturbingly reluctant to uphold 4th Amendment rights, but our right against unreasonable searches and seizures is still relevant in the vast majority of common police encounters. Knowing these rights remains your best and only defense when confronted by law enforcement.

Flex Your Rights' response to the new random search policy on D.C. public transportation may soon find us in court.

Being on the blunt edge of technology, I've just subscribed to my first podcast. Created by rockstar attorney, David Clark (AKA: Smoove D.), the show celebrates the myriad reasons why the 4th Amendment, um, rocks. Enjoy!

Our response to the new random search program on public transportation in DC is continuing to generate media hits, including a negative reaction to our work in The Washington Times.

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:

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.

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:

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.