Police officers sometimes exceed the limits of their legal authority. The frequency with which this occurs should be discussed elsewhere; my question is more about how to stand up for your rights when it happens.
Two cases of interest that make me ask my question.
First case (background here):
Michael Righi was arrested for refusing to show photo ID to a police officer, despite the fact that no law required him to do so. The charges were ultimately dropped. The victim was pursuing a lawsuit and likely would have won a fat settlement, but dropped the case to avoid burdening his family with the stress of it all.
Second case (background article and video here):
a motorcyclist is stopped, and the official reason given for the stop is that the cop intends to confiscate the rider’s video camera for use as evidence against other riders. Motorcyclist insists on a warrant before consenting to property seizure, and is ultimately arrested on a bullshit “obscured license plate” charges, and the camera is then confiscated without a warrant. The motorcyclist later filed suit; in the end, the officer was suspended for about a month, and the department settled with the motorcyclist for $25,000.
Suppose that I am someday given an illegal order by a police officer, e.g. he orders me to show government-issued photo ID when I am under no legal requirement to do so, or he insists on confiscating my personal property without a warrant. If I consent to the officer’s demands because I am under threat of arrest, would I still have grounds for a lawsuit? Or would they say “hey, you consented, so we didn’t violate laws.”
The police can seize your property without a warrant. I have seized cameras and phones often. There is an exigency issue. If I reasonably believe there is evidence on the phone and I know that evidence will most likely disappear if I let you go I can seize the evidence. What I can’t do is look in your camera or phone before getting the warrant unless I get consent. If you take away the exigency exception then pretty much any evidence could be destroyed before warrants are obtained. The particular case you cite has other issues. The arrest seems to be bogus. I couldn’t seize a camera in my state just for evidence of a motor vehicle violation. It would have to be a crime. That may be the case in that state as well. Just because there were other things wrong with that stop and arrest does not mean you can make a blanket statement about police not being able to seize property without a warrant.
That is often the problem when people are trying to assert their rights during a motor vehicle stop or arrest. Be damn sure you know what your rights are. Sandra Bland was sure she had the right to smoke her cigarette. I doubt she knew about Mims v. Pennsylvania which states she did not have the right to refuse to exit the vehicle.
In general the time to have legal arguments is in court and not on the street.
I’m not sure where people get the idea that they can resist arrest. Unless the cop is doing something that is so obviously out of bounds - there is really nothing you can do. You wait to get bailed out and then argue it in court or take the police to court if you aren’t arrested.
That’s what courts are for. Innocent people are arrested all the time. You go with the cop and you get bail. I realize there are areas where the police mistreat people, and perhaps being white my experiences are shaded.
I’m pretty sure (and loach I’d like your opinion) that you can ask the cops “are you asking my permission or ordering me to?” I know you can always ask the police if you you are under arrest. Of course technically you can ask them anything I guess
If you don’t consent I think it’s probably sufficient to make a polite request that “could you note in your report that I’m not consenting to this?” Or if the tell you it’s not your choice - that’s pretty clear cut there. A court isn’t going to say cause you didn’t try to beat up the cop that you consented.
Of course the cops can always lie, but in that case there isn’t much you can do.
I don’t get why these people fight the cops - especially in cases where they are in a confined place like a car. You are not going to win! Even if the cop is a huge dick - trying to be a bigger dick is even a dumber thing to do. If he is that unprofessional who knows what else he will do?
I mean what is their exit strategy - that they get away from the cop on foot that now know their license plate and where the live or drive away (all the while on camera)?
There is no guarantee of not going to jail if you challenge an officer. Loach makes some very good points. Sometimes the officer is absolutely wrong. More times, the citizen is asserting a right which is non-existent.
However, if the officer truly is wrong, you may have to take the ride to jail, post bond, get acquitted, then win a civil suit. I would rather just go home.
I’ve never heard of someone getting arrested, at least around here, for peacefully even if somewhat tersely, questioning an officer’s authority.
This.
Also …
[ul]
[li]Never consent to a search, no matter what an officer may say / cajole / threaten to you.[/li][li]Make sure any electronics you have in your possession (smartphone, tablet, phablet, laptop, etc.) is password-protected at all times. No exceptions.[/li][/ul]
You know, there is a lot of ‘get bail and fight it out in court’ posted here. NOT everyone is in a position to pay bail and pay for a lawyer to fight it in court and may not qualify for public legal either. In these cases, and I think there are lots of the, an officer gets off scot free, possibly violating rights. There needs to be someone to stand up for these people and if it never gets to the court they are SOL.
Defending yourself, even in a traffic case, can be very expensive.
Yes there are plenty of people that can’t afford bail.
Are you really suggesting they fight with the police(you didn’t say this)?
Yes - someone should stand up for poor people who are wronged - and sometimes they do, but that isn’t like to happen anytime soon.
I don’t even know what happened in the case with that woman, but some of these cases - like that guy in New York with the loosies - I’d be surprised (well not astonished) if they didn’t let him out without bail.
The only thing a poor person needs less than getting arrested when he or she shouldn’t is getting arrested with an additional charge of assaulting an officer or resisting arrest. They probably won’t be getting low bail then.
Police abuse is awful and should be tolerated - and I am in no way BLAMING the victim, but in some of those cases - it probably wouldn’t have gotten as bad as it did if they had cooperated and raised a stink later.
There simply is no logical reason to “make a stand” or something when the only person who can witness it is the one violating your rights. It makes zero sense.
I had my rights violated once - and I didn’t have money so I sued myself - and I didn’t get any money out of it, but technically “won” - and I subpoenaed everyone remotely involved - I think it was like 12 people - they filed a motion to quash and at least I got the satisfaction of seeing them all show up - one was retired and had to come back - and their attorney hated me.
Definitely wasn’t “worth” my time, but I ended up getting like $400 in court costs and yeah - if I didn’t have some experience with the legal field - I couldn’t have probably done it, but I still got off Scott free - and if I had resisted I would have gotten time.
In light of Loach’s post, it seems the motorcyclist is a bad example, since he didn’t understand the extent of the officer’s authority to confiscate the camera (interestingly, it appears the officer himself didn’t understand that he truly did have the authority to seize the camera without a warrant).
But the first case merits further discussion. I can’t find Michael Righi’s blog anymore, but he explained that he was indeed prepared to be arrested - and calmly submitted to the arrest after refusing to show his ID, confident that the police was digging himself a hole of civil liability.
What I’m wondering is this: if he had surrendered his license due to threat of arrest (and therefore not gotten arrested), would he have been entitled to a civil judgment of the same worth that he would have gotten if he had followed his actual civil case to its conclusion?
He isn’t damaged as much by simply showing his ID as being actually arrested - much less taken to jail.
Civil judgements aren’t a get rich quick scheme - although I like your thinking.
I have sometimes cooperated with the police even though I knew I didn’t have to (the cop was being overly nice - could have written me a ticket - admitted he didn’t have the right to look in my glove compartment - he was simply asking for me to show him there wasn’t a gun [i have no idea why he thought gun])
I made the decision to show it to him cause he was being nice - and I felt like a huge dick cause he really could have given me some tickets there.
In your case the person has no obligation to show his ID, but how much has he really been damaged? Yeah it’s hard to put a price on these things. If he actually got taken to jail - that would be huge.
Now in a case like that - whether or not it actually written in the law - when a jury or judge decides an amount - they are going to take that stuff - even subconsciously into consideration.
Did the officer honestly believe he was right?
Was he being polite about it?
I’ve seen some videos where the cops are abisive demanding stuff that isn’t legal - even knowing they are being filmed.
Those guys - yeah they should get the book thrown at them.
Some say it doesn’t matter, but it’s going to matter in the perception of how you were treated.
By avoiding confrontation - yeah you might be giving up the future possibility of making money by avoiding further more illicit action by the police. But on the flip side they also are probably going to be less likely to lie and treat you well.
Only you can decide what you value more - a future POSSIBLE payday - or avoiding current problems. You might end up as I did - I won - and the judge decided I wasn’t damaged - not really like your case - but I’m saying you don’t always get a huge payday.
It might not be even enough to pay your lawyer fees for getting arrested.
But can the police order you to put out your cigarette for a simple traffic stop?
(IIRC the lady was not given a reason - like “that cigarette threatens me” - the officer just decided to be a dick and issue orders because he believed he could- Smoking While Black. When you pull someone over for real or imagined violation, you are not automatically entitled to their respect and silent obeisance, just their license and registration. The respect will come if they think they might actually not get a ticket anyway.)
I’ve seen several different versions of traffic stop rules posted/suggested, one says stay in the car unless asked to get out, the other says get out so they don’t think you are reaching for guns or hiding drugs in there while they walk up to the car.
To answer the OP - “you don’t”. You either go along or disagree politely and still end up in jail. If the officer has decided to do something illegal, he will. Fighting him earns you the “resisting arrest” which is harder to fight if you really did resist. Now you really have to prove the order was really illegal to escape a resisting charge.
IIRC, the guy choked to death over “loosies” did not actually have any loosies on him at that time when he was “arrested” (the polite term)
I wasn’t thinking so much of a get-rich-quick scheme. The reality is that if I were in that guy’s shoes, I would be genuinely angry about being coerced (by threat of arrest) into not asserting a civil right. As you note, it’s hard to put a dollar amount on such things. But if the officer essentially says to me:
“you must surrender civil right A (e.g. show me photo ID, even though you weren’t driving), or surrender civil right B (be subject to false arrest)”
my gut feeling (I know, that’s a shitty basis for jurisprudence) is that I am damaged merely be being forced to choose, and that the damages awarded should be the same regardless of my choice. To claim that the damages are different in each case is to claim that one civil right is more/less valuable than another civil right.
The police lie through their teeth. I remember a Mountie demanding one of my passengers’ ID. When asked why, he said under Canada’s vagrancy laws, people were obliged to identify themselves. This was in the late 70’s almost a decade after the Canadian Supreme Court had ruled the vagrancy law unconstitutional. There’s no way a member of the RCMP did not know that. He just figured what he saw as a bunch of uneducated bumpkins did not know. When I mentioned that fact to him, he stopped demanding.
The also did not force one of my passengers to get out, since he was passed out lying on the front seat. (I had been driving scrunched up against the door to avoid sitting in his puddle of vomit). Since I did not drink, I was the designated driver. The owner of the car had had 2 DUI’s, back when that was a 6-month suspension. No tickets resulted from the stop… they were just checking.
My experience here in the “greater Los Angeles area” is the opposite. Questioning an officer’s authority is a great way to become a suspect and get taken in for questioning.
Meanwhile, your car will be impounded and you get to sit in a holding cell for a couple of hours with people you’d rather not meet. Eventually you’ll be told the officer decided to cut you a break and you’re free to go.
Lets not go that far. I don’t know all the particulars of that case or that state’s law. He quite possibly had authority to seize the camera without a warrant. He also could be overstepping his bounds. What reason did he have to believe that there was evidence on the camera? What crime was supposedly committed that was filmed? Did it rise to the level needed to seize property without a warrant? There are situations where property can be seized and others where it can’t.
Sure he can order you to put out your cigarette. He just doesn’t have legal authority to force you to put it out. He does have the legal authority to order you to exit your vehicle for any reason. If you refuse that is obstruction and an arrestable offense. Also in many states you can be arrested for any motor vehicle violation.
Glad someone (at least obliquely) made reference to the fact that you’re perfectly entitled to resist arrest. These type of threads always get overwhelmed with people saying accept it and argue later. Whilst this may be the wisest course of action to avoid getting hurt, it’s not strictly speaking entirely correct legally.
If you really are being unlawfully arrested then that is assault which you are entitled to resist using reasonable force - even if that means kicking the shit out of the police officer (if that is what needs to reasonably be done). It’s the same as if any member of the public tried to unlawfully restrain you. It’s a common law right.
The trouble is that whether the attempted arrest was unlawful and whether you used reasonable force would all have to argued out later in court. If you win then you walk away because you were entitled to use that reasonable force. Of course I would stress that you would never actually do this in real life for a number of reasons but you could do it if you were 100% convinced it was an unlawful arrest and if we had a 100% perfect legal system and judges/juries were like robots who always applied the law 100% consistently and accurately.
Okay, here is a real life example that does not seem to be covered in the discussion above. It happened 50 years ago and this particular behavior would not happen today (I think), but the principle has not changed. You can go to jail because the cop arrests you and you will have to spend the night in jail and fight it out in the morning.
Simplifying the story a bit, a friend of mine was renting a third floor apartment in a converted house. The owner occupied the ground floor. The owner saw him go up to his apartment with a woman. Half an hour later, a cop showed up and told the woman to leave. He said that the owner of the house complained and had the authority to prevent behavior he disapproved of. My friend and the woman spent the night in a motel. The next day he spoke to a lawyer who told him that no, they didn’t have the authority to do that, but did he want to spend the night in jail? There is literally no recourse in such a case. You could go to jail and then sue I suppose, but why should you have to?
Remember, folks, 99.99% of police officers are responsible, bound by duty, and an asset to our communities. I’m not saying they’re the brightest, but they are the bravest of us all. In a very real way, it’s their job to “take the bullet” for you … please treat them that way.
I read this before my morning coffee and about peed my nightclothes … since when does an SDMB moderator have the right to seize my phone?
