Author Archives: scott

San Francisco Examiner reports on the latest in a series of controversies surrounding constitutional violations by SFPD officers:

Private attorney Robert Amparan said at a news conference Wednesday at Public Defender Jeff Adachi’s office that a judge had just thrown out his client’s felony marijuana possession for sale case because video evidence contradicted the officers’ testimony in court and statements on the police report.

Amparan said 23-year-old McLaren Wenzell did not consent to letting the officers inside his apartment at 33rd Avenue and Geary Boulevard on March 1. He said the officers did not immediately identify themselves as police and did not have a constitutional basis to search the apartment.

As we work to educate the public about how to properly exercise constitutional rights during police encounters, a reaction we hear frequently is, "What’s the point? They’re just going to search me anyway." Well, as you can see in the story above, police can get busted for bad behavior, and when they do, the evidence is often declared inadmissible. Think about this: if the suspect had instead given consent for the search, there wouldn’t have been any question about the legality of the police entry, and he would have been convicted.  The only reason things worked out for him is because he refused the search and relied on his constitutional rights for protection.

But the critical point here goes beyond what happened to this particular suspect in this particular case. Keep in mind that the legal significance of refusing a police search applies whether or not you’ve broken the law, and whether or not police break the law. If officers plant evidence, damage your property, or otherwise disrespect your home, it’s almost impossible to challenge their actions if you gave them permission to come inside. That’s how the law works, and the fact that police sometimes violate it gives you more reason to know and assert your rights, not less.

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Recent Supreme Court decisions regarding search and seizure haven’t exactly signaled an unyielding reverence for our 4th Amendment rights, so I shudder to think how the Court will rule on this:

Kentucky police were following a man who had just sold drugs to an undercover informant. They entered an apartment breezeway, heard a door slam and found they had two choices.

Behind door No. 1 was the dealer. And, unfortunately for him, behind door No. 2 were Hollis King and friends, smoking marijuana.

Smelling the drug, the officers banged loudly on King’s apartment door and identified themselves as police. The officers said they heard a noise and feared evidence was being destroyed. They kicked down the door and found King, two friends, some drugs and cash. [Washington Post]

Home searches generally require a warrant, even when probable cause exists (the smell of marijuana), but officers claimed their fear that evidence would be destroyed constituted an "exigent circumstances" exception to the warrant requirement. Ironically, however, the presence of police became known to the suspects only because the officers knocked and announced themselves. If any effort was made to dispose of evidence, it was obviously triggered by the police, who could have waited for a warrant rather than initiating contact right then and there.

If the Supreme Court upholds this search, police will be encouraged to creatively interpret any noises heard within homes they’d like to search, and it’s hard to imagine what sorts of sounds couldn’t potentially be said to indicate possible destruction of evidence. Police who hear "sudden movements" after pounding on someone’s door can claim to be concerned about destruction of evidence, but who wouldn’t make a sudden movement if cops were shouting and banging on the door? Maybe I’m just putting on some pants. Maybe I’m hastily locking my dog in the bathroom so they won’t shoot its brains out. People are going to react when disturbed in their homes and it’s absurd to strip our 4th Amendment rights based on one of many possible explanations for the movements people make when you startle them.

Keep in mind, however, that this case involved a probable cause situation in which police did smell marijuana. Even the worst possible ruling still wouldn’t give police the authority to randomly knock on doors with no evidence and perform emergency searches based on suspicious reactions from the people inside. But if the Court continues chipping away at the 4th Amendment at its current pace, I can’t blame anyone for worrying that we’re headed in that direction. Fortunately, some of the justices expressed serious concerns about giving police more leeway to perform emergency searches. This one could go either way and we’ll be sure to keep you posted.

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More than two years after plans were first announced, the Washington Metropolitan Area Transit Authority has finally implemented a program of random bag inspections. At unannounced checkpoints, riders will be selected at random and asked to submit to chemical analysis of any packages they are carrying. Any bags testing positive for explosive materials will be searched. Riders who are chosen for inspection may decline, but will not be permitted to enter the station with their bags.

This is essentially a modified version of a proposed program that stalled in October ’08 due to widespread outrage over the obvious civil liberties violations involved in carrying out suspicionless searches on public transit. Flex Your Rights played a leading role in opposing the program by organizing public protests and distributing informational flyers about how to refuse Metro searches. Our efforts generated significant media coverage, and even provoked frivolous legal threats from Metro itself, which the ACLU of the National Capital Area successfully rebutted.

As the months passed by without any searches, we came to believe that our campaign had been a success and that public opposition had, for once, succeeded in shutting down a shameful assault on our 4th Amendment rights. Sadly, it’s now clear that the program’s proponents were merely regrouping and revising their plans after meeting with an unexpected level of opposition.
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That’s what one student said after attending a screening of 10 Rules for Dealing With Police at West Virginia University. After another showing at Quinipac University in Connecticut, a student commented that, "I didn’t think I had the right to refuse." We hear that reaction all the time, and that’s why know-your-rights events like these are so important.

It’s been less than a year since we released 10 Rules for Dealing With Police, so this Fall semester has been our first opportunity to really begin debuting the film on college campuses. Groups like Students for Sensible Drug Policy and Students for Liberty have done an amazing job putting together events across the country, and we’ve recently partnered with NAACP, which should create lots of great opportunities as well.

Of course, you don’t have to be a student, or a lawyer, or an experienced activist to help educate your friends and family about how to deal with police. We’ve put together a helpful guide for anyone who wants to organize a know-your-rights event in their community. It’s easier than you think, and just one event can empower dozens, even hundreds, of people to protect their rights during police encounters.

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That’s how Crawford County State’s Attorney Tom Wiseman justifies his decision to bring five felony charges against an Illinois man who recorded an encounter with police officers. As the debate over the right to record police heats up, I’ve often found myself wondering how on earth anyone in law-enforcement could justify arresting citizens simply for recording video of a public encounter.

Alas, this piece by Radley Balko answers my question and it isn’t pretty. Imagine my surprise to find the same folks who coined the phrase, "If you’ve got nothing to hide, then what are you worried about?" suddenly claiming a right to privacy after videos of police misconduct began springing up all over the web.

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Ta-Nehisi Coates at The Atlantic comments on a recent incident in which a 57-year-old school-teacher was tased after calling police to report a prowler.

New York Times reports on a section of Brooklyn that’s become a focal point for NYPD’s out-of-control stop and frisk tactics. “These encounters amounted to nearly one stop a year for every one of the 14,000 residents of these blocks.” Yikes.

The controversy over last year’s arrest of Harvard Professor Henry Louis Gates is back in the press following the release of a new police report investigating the incident. Interestingly, the findings don’t really address the issue of race, which is surprising given the role that racial tension played in the encounter and subsequent debate.

NPR had a great piece last week on the right of citizens to videotape police, featuring Radley and Carlos Miller. USA Today also has an excellent editorial defending the pratice of recording officers in public.

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This video of a police officer punching a young woman is generating a lot of discussion around the web:

Unlike most viral videos of police using force against a suspect, this one seems to be generating a considerable amount of sympathy for the officer involved. Even on sites like Digg.com with a history of exposing and condemning police brutality, a majority of commenters feel that the officer acted more or less appropriately under the circumstances.

Since we can't see what took place prior to the video footage, it's impossible to completely critique the officer's handling of the situation. But it's clear that the woman who was struck had shoved the officer in an attempt to help her friend resist arrest. Though hard to watch, I doubt the officer's actions were technically illegal under the circumstances. He'd been assaulted, and police are authorized to use force when that happens.

I think I agree with Radley Balko that the officer should never have let a jaywalking arrest escalate to this point, but there's a reasonable counter-argument that police shouldn’t let uncooperative suspects off the hook simply to avoid a conflict. Flex Your Rights teaches passive non-cooperation such as remaining silent and refusing to consent to searches, and we strongly discourage physically resisting police during a detention or arrest.

The punch was ugly and unnecessary, but the behavior of the suspects here was also completely out of control. Even the most unreasonable arrest is better resolved by pleading your case to the judge than wrestling the officer on the street. You can't win that way, and there's no limit to how badly you could be hurt. … Continued

The Supreme Court ruled today in Berghuis v. Thompkins that a criminal suspect must specifically invoke the right against self-incrimination in order for constitutional protections to apply.

The case centered around the interrogation of murder suspect Van Chester Thompkins, who remained virtually silent for hours, before giving a few brief responses to police questions. Most significantly, Thompkins answered “yes” when asked, “Do you pray to God to forgive you for shooting that boy down?” The statement was introduced at trial and Thompkins was convicted.

In a 5-4 ruling, the Court held that criminal suspects who do not clearly state their intention to remain silent are presumed to have waived their 5th Amendment rights. Ironically, suspects must literally open their mouths and speak in order for their silence to be legally protected. The new rule will defer to police in cases where the suspect fails to unambiguously assert their right to remain silent.

Naturally, Flex Your Rights is concerned about any retreat from the basic principle that criminal suspects should not be compelled or coerced into incriminating themselves. Today’s ruling will undoubtedly create additional challenges for suspects who already understand too little about how their constitutional rights apply during police interrogations.

Fortunately, however, the Berghuis decision leaves intact the best strategy for handling any police interrogation: keeping your mouth shut. Requiring suspects with limited legal knowledge to clearly assert their rights may seem a bit strict, but it’s irrelevant if the suspect never says a word to begin with. The point of the 5th Amendment isn’t to protect you after you’ve foolishly incriminated yourself, it’s to remind you that you’re not obligated to answer police questions in the first place.

Ultimately, the burden is on each of us to understand our rights and use that information to make the best decisions. It’s unlikely that any Supreme Court decision will ever change the fact that remaining silent is your best and only strategy if police are asking you incriminating questions. … Continued

Since Flex Your Rights was founded in 2002 to educate the public about constitutional rights during police encounters, our work has met with very little controversy. Every citizen should understand their basic Bill of Rights protections, and our materials have been embraced by both police and the public. That’s why we’re deeply concerned about today’s news that two high school teachers in Virginia were suspended after showing one of our videos to their students:

Two Norview High School teachers were placed on paid administrative leave this week after a parent complained that they distributed classroom materials that gave advice on how to deal with police if stopped.
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The video, “Busted: Citizen’s Guide to Surviving Police Encounters,” is posted online at http://tinyurl.com/2sb2ho.  It opens with a portrayal of young adults stopped by a traffic officer who searches their car and arrests them for marijuana possession.
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A commentator on the video states, “Whether or not you break the law, this video is designed to explain what the law is and how you can legally and properly assert your constitutional rights through even the most stressful police encounters.”

For each scene, the commentator explains how legal rights apply to police searches of vehicles, homes or individuals and how people can cite those rights during encounters with police. [The Virginian-Pilot]

Millions of these encounters occur each year in America, and it is plainly absurd to suggest that our young people should receive no education in how to handle them. People who understand their rights and know what to expect during a police encounter are less likely to make regrettable decisions, thus our materials reduce the likelihood of negative outcomes for both individuals and officers of the law.

Unfortunately, as we work to provide this important public service, we do sometimes receive criticism from individuals who misinterpret our discussion of constitutional rights as an endorsement of breaking the law. It’s not. We sometimes depict and discuss criminal activity in our materials because there are important legal lessons that are difficult to illustrate without it. Police are trained both to fight crime and uphold the constitution, and there are numerous instances in which these interests come into conflict with one another.  Depicting such scenarios makes our work realistic, but should not make it controversial.

In a perfect world, only bad people would be stopped by police, misunderstandings involving innocent people would not occur, and our laws would never be used to punish anyone who didn’t deserve it. Things just aren’t that simple, and the constitutional rights we all enjoy were brilliantly designed by our nation’s founders to help ensure fairness under sometimes complicated circumstances.

That’s why police have endorsed, rather than condemned our efforts, and the video at the heart of today’s controversy has earned overwhelmingly positive reactions such as this one:

“BUSTED teaches that people have precious inherent rights under our
Constitution and should never feel guilty when exercising these rights
during police encounters.”

      – Joseph D. McNamara, Former San Jose Police Chief

Indeed, no American should ever be ashamed to assert their Bill of Rights protections, and our educators should be praised, rather than reprimanded, when they teach constitutional rights in the classroom. Withholding this important knowledge from students is gravely irresponsible and we’ll vigorously oppose any effort to silence or mischaracterize the work of our organization.

Please click here to share your concerns with the school administration, and stay tuned for more details as they emerge.

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