By The Festival Lawyer
(re-posted)
SHARE THIS KNOWLEDGE WITH OTHERS
People often suggest to me that either 1) It’s somehow “Un-American” to talk about your rights when dealing with the police or that 2) Somehow only someone who is intending to break the law would need to understand their legal rights.
People often suggest to me that either 1) It’s somehow “Un-American” to talk about your rights when dealing with the police or that 2) Somehow only someone who is intending to break the law would need to understand their legal rights.
As to 1) This is really some dangerous
nonsense. In fact this honestly might be one of the craziest ideas that has
ever taken root in our Country and as to 2) As I always say “It’s better to
know your rights and not need them, than to need your rights and not know
them.”
The accompanying article goes into an
overview of some 4th Amendment law in more detail. But really the infographic
is meant to be shared even without the article. Feel free to share this
infographic on Twitter and Facebook. Tag family members or friends who might be
going to a music festival. Share your experiences and insights. Do more reading
of your own and share that too.
As the very last part of the
infographic says:
You have rights. Know them
You have rights. Know them
Ed. Note: The Following breaks
down the Festival Lawyer’s infographic in more detail:
The “Know Your
Rights” infographic – A Police encounter “Flow Chart”
A lot of people write me asking how
they should have handled a negative encounter they
had with the police at a
music festival or rave.
I keep hearing phrases like, “I wish I
had known that I didn’t have to make a statement” or “I didn’t know I could say
no” or “I wasn’t sure if I had a right to leave or if the cop was detaining
me.”
The fact is that you DO have rights in
dealing with the police. The “Know Your Rights” infographic is meant to be used
as a practical flowchart of what your rights are at every stage of a police
encounter.
A COP “STOPS
YOU” AT A MUSIC FESTIVAL
The 4th Amendment of the Constitution
prohibits “unreasonable” searches and seizures.
That means you are supposed to
have a right as a citizen to freely go about your business without being
randomly detained or investigated. In order to “stop” you, an officer first has
to have a belief that you were engaged in criminal activity.
There are 3 levels of police “stops”.
At each higher level of police encounter, the police officer has to show more
justification as to why he stopped you.
Consensual
Encounter – A police encounter where you are not the subject of a
police investigation and are free to leave. Officers don’t have to legally
justify a consensual encounter because you can leave at any time.
Detention – A
police encounter where you are temporarily stopped while the police investigate
you for a crime. Officers must have a “reasonable suspicion” that you were
involved in criminal activity to detain you.
Arrest –
Permanently stopped and on your way to jail. An officer must have “Probable
Cause” to believe you committed a crime to arrest you.
You know how H20 can be in three
different physical states? (Steam, water and ice if you don’t have your 4th
grade science notes handy) Well, the 3 levels of police stops are similar. Each
of these levels is sort of a different legal “state” of being. And your rights
are different in each of these “states”.
There are some big differences of
course. In the H20 example you end up with an ice cube. In the police stop
final state you end with a cell mate named “Bubba”.
One of the main goals of the
infographic is to give you the right questions to ask so that you will know at
any time which level of police “state” you are in. (Get it? police state? See
what I did there?).
AM I FREE TO
LEAVE?
If you are stopped by a police officer,
the first question out of your mouth should be, “Am I free to leave?”
Asking this question gets you an
immediate answer as to whether you are legally “detained” or free to leave. It
also puts you in the best legal position possible should you later want to
challenge the legality of the police stopping you. If you challenge your
detention, the officer will have to show a “reasonable suspicion” of criminal
activity basedonly on the facts existing at the
moment you said the phrase and he detained you.
Nothing AFTER that moment can
be used to justify the stop.
Here is
a practical example of the use of the “Am I Free to leave” phrase.
“YES” = LEAVE
As you can see from the decision tool,
if you get a “YES” after you ask “Am I free to leave? The only “action item” is
to LEAVE.
Again, there is a legal reason for
this. If you don’t leave immediately when given the chance, a judge may later
rule that you were free to leave but that you chose to
stay. (In other words, it was a “Consensual Encounter”). As I mentioned above,
an officer never has to legally justify a “Consensual Encounter”.
In other words, once you get a “YES”,
the best and only advice is “You got to get out of there.”
“NO” = DETENTION
A “NO” answer means that you are
detained and no longer free to leave. You are enough of a suspect that Marge
Gunderson would consider you to be, “fleeing the interview” if you left at this
point.
It’s important to remember that
officers DON’T have to read you your Miranda
rights in a detention. Don’t respond to questions like “What is this?” or
“Whose backpack is this? or even something innocent like “How long have you
been here?” as they can be legally used against you later.
MUST SHOW ID
Some civil libertarians would argue
that you legally never have to show a police officer your ID unless you’re
driving a vehicle or you are a passenger on a commercial airline. The problem
with that is that a number of states have what are called “stop- and-identify”
laws. These laws give cops the authority to make you identify yourself if
officers have a “reasonable suspicion” to believe criminal activity may be
taking place.
As of 2013, 24 states had stop-and-identify
laws. Since you already asked to leave and were told “NO”, the
officer clearly thinks he has a “reasonable suspicion” to detain you.
To me,
it’s too risky not to show your ID (and give your correct name) once detained.
But as with everything in this article, do your own research for your state
laws and make your own best decision.
WHY AM I BEING
DETAINED?
If you are detained, calmly ask, “Why
am I being detained?” This can be valuable if you later want to fight your case
in court.The answer the cop gives may limit what he can later claim was the
reason for stopping you.
It’s important not to use this question
as an excuse to start arguing with the cops. I can’t stress enough the prior
advice about not talking to the police. People who talk to the cops end up in a
legal situation we call “raptus regaliter” (royally screwed).
“AM I NOW FREE
TO GO?”
In an encounter with the police, the
courts require you to keep asking to leave or you may be deemed to be in a
“Consensual Encounter”. If the answer is “YES” then leave. If the answer is
“NO” you will need to determine if you are under arrest by asking the
following:
“AM I UNDER
ARREST?”
“YES” = ARRESTED
“NO” = “FUNCTIONAL EQUIVALENT” (COVER BAND ARREST)
Legally, if a detention goes on long
enough, it becomes an arrest even if the officer doesn’t say the magic words
“You are under arrest”. Basically, if you keep asking to leave and the cop
doesn’t let you go the courts say you are in the “functional equivalent” of an
arrest. I call this a “Cover Band” arrest. The officer may not be calling it an
arrest, but it sure looks, feels and sounds like an actual arrest.
Whether the officer is calling it a
“detention” or an “arrest” as a practical matter you should make the two
statements listed at the bottom of the infographic to fully protect your legal
rights.
“I’M NOT GIVING
YOU CONSENT TO SEARCH MY PERSON OR PROPERTY”
Cops always make it seem like you’re
some kind of a criminal if you express the slightest hesitation about having
your property searched without a warrant. You can expect to hear an “If you
have nothing to hide, why can’t we search your stuff?” type of response from
the cops.
Know this…If the police are
asking you permission to search you or your property, it usually means they
know they are making an illegal search.
The police may have a legal right to
search you without your consent. (For example, if you are arrested and the
officer had probable cause for that arrest) But what you’ve done by making this
statement is preserve all your legal rights and force the police to show they
are legally entitled to search you.
“I DON’T WANT
TO GIVE A STATEMENT. I WANT A LAWYER”
Cops will say that a person invoking
their rights in this way has “lawyered up”. In addition to sounding cool, there
is a really good legal reason for “lawyering up”.
As I mentioned above, the police only
have to read you your Miranda rights if you are under arrest (or a “cover band”
equivalent of arrest). The police can legally question you without Miranda
rights in a detention.
In Salinas v. Texas (Jun 17, 2013) 133
S. Ct. 2174 the Supreme Court took that rule a step further. The Supreme Court
ruled since it’s legal to question you during a detention it’s also fair for a
prosecutor to comment on your silence. In other words the prosecutor can say
how suspicious it is that you didn’t respond when a cop made a damning
accusation to you like, “I know it was you, Fredo!”
The Court ruled that your silence in the fact of an
accusation can be used against you unless you make it clear that you were
affirmatively exercising your right to remain silent and have a lawyer present
for questioning.
In other words, you have to SAY OUT LOUD THAT YOU WISH TO REMAIN
SILENT…which would make an awesome Newspeak poster
in Oceania by the way.
VIDEO TAPE THE
ENCOUNTER
Recording a police encounter can be one of the most
helpful things a festival buddy can do to help a friend being arrested.
However, it’s also one of those areas where you can easily end up in legal
trouble yourself from taping.
I strongly suggest you review your
state’s laws and have an understanding of what you need to do legally before
attempting to video the police. Here is
a good starting place.
If you feel you can safely and legally
video tape the encounter I suggest that you say the following if cops instruct
you to turn off the camera.
“Officer, I’m not interfering with you in any
way. I am just documenting this arrest. This is a public place and I’m entitled
to record this.”
While making this statement, I would
make a show of backing up and getting out of the way to prove that you are not
interfering but just observing.
