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These videos don’t lie about the power of silence with investigating police

Aug 09, 2011 These videos don’t lie about the power of silence with investigating police

Repeatedly, I underline the importance of keeping silent to those investigated by police. Repeatedly, people ignore my admonition to be quiet with the police. Is that because I seem to be overintellectualizing the matter?

Fine, then. Watch these two videos (thanks, Carlos Miller) of police continually harassing a man simply filming Baltimore’s light rail near the Meyerhoff symphony hall, simply due to his fascination with such systems. Then watch the videos with your friends (and even with your anti-friends), and email them around until they go viral. The police had a retort for every question the man answered; his answering questions got him nowhere, other than averting deeper police suspicion had he not told them why he was filming.

You will not win talking with police who suspect you. This is not a level playing field. For each police question you try to answer, and for each argument you make, more questions will fly at you — sometimes rapid fire, and sometimes downright nasty, sarcastic, or demeaning — to the point that either you will trip yourself up and mistakenly tell something that is not accurate, or the police may misconstrue your words due to information overload (let alone those cops who will be intentionally careless or downright dishonest in construing your words), risking your words’ haunting you all the more.

With cops investigating you, just krazy glue your lips. If a cop threatens you with a speeding ticket, do not try to talk your way out of the ticket, lest the cop charge you with attempted bribery. If a cop threatens you with arrest, be comforted knowing that you have the right without excessive delay to appear before a judicial officer who will make a decision on your bail and pretrial release conditions (and contact a qualified lawyer immediately to help).

In the United States of America, no law requires carrying identification, unless one is a driver. Therefore, I strongly believe that there cannot be a crime for refusing to show identification when not a driver. Fortunately, the Supreme Court’s 2004 decision in Hiibel v. Sixth Judicial District Court of Nevada prohibits arrests for identification refusal (and leaves open the door to prohibit cops from requiring anything more than one’s name, versus one’s photo identification and address, unless the person is driving a car) except where police have reasonable articulable suspicion to believe the suspect has committed a crime. (See Mr. Hiibel’s Constitutional rights being shredded here.)

None of today’s blog entry is over-intellectualization. It is the real world. I have experienced with my own two eyes and ears the importance of keeping one’s mouth shut with investigating police. In 1991 — before I started doing criminal defense and, later, First Amendment defense — shortly before Gulf War I began, a friend and I went to demonstrate for peace while the Senate debated whether to authorize George Bush, I, to go to war. As I proudly displayed my pro-peace poster, a Capitol police officer asked if we were demonstrators, to which I proudly answered yes, whereby I had unwittingly helped the police prove the first element of any prosecution for demonstrating without a permit (although I would have expected a strong First Amendment defense for demonstrating without a permit when there was no reasonable way to know in advance of the circumstances giving rise to my demonstrating, let alone that wearing a t-shirt with the same message would not have been actionable at all). The officer several time firmly asked for identification; I did not want to show mine, but my friend was too worried about not showing identification, and I showed mine, too, so that he would not then be left alone had I gotten arrested for not showing mine. The officer then said he was calling in our ID’s to other officers, and that we would thereby be arrested if caught demonstrating any further without a permit. The rest of the story is here. One of the lessons I learned here is that police are masters at dividing and conquering. If you are going to demonstrate, set up a game plan with your fellow demonstrators about dealing with police who will threaten your First Amendment rights to free expression and to petition the government for a redress of grievances.

Around six years ago, I beeped my horn long at a car that cut me off. Only after doing so did I realized it was a cop who had cut me off. Having passengers in my car and somewhere to get to, I mistakenly made an effort to try to get out of delay by telling the approaching cop that I beeped without realizing he was a cop. That just got him asking a bunch of questions about why I thought it was okay to blast my horn even to a non-cop. I refused to answer his questions. He told me he was going to get a ticket book for beeping unnecessarily (an infraction that I am not aware of), but a few minutes later told me he did not have his ticket book with him (hard to imagine).

And then three years ago, I first went silent with an airport cop (see here, too) asking about reports of my doing karate kicks inside the airport waiting terminal (I was actually practicing slow-moving t’ai chi ch’uan while waiting for a 40-minute-delayed flight bringing a Nipponzan Myohoji nun and another activist arriving from Japan to join the Longest Walkers). I started off by following my own advice to others, by refusing to tell the police what I had been doing, and by refusing to show my identification when asked to show it. Ultimately, a "good cop" stepped in to offset the original cop, and in a kind and understanding tone of voice (whether or not the tone was sincere), asked: "Excuse me sir. Would you mind stepping over here?" (Another choreography direction from the cops, with the first one having said I was not free to leave.) "All we want to know is what you were doing if you are willing to tell us." I then asked myself whether to remain silent, which I tell others to do when they are suspects, or to wear the hybrid hat of a criminal defense lawyer who stands up to cops all the time for my clients, and someone wanting to be there when my visitors arrived at the gate (more police divide-and-conquer efforts).

I answered: "It’s the Chinese martial art of t’ai chi. I hadn’t gotten around to doing it yet today." The second cop nodded her head knowingly before I finished talking, and said, "I thought so." and okayed my question whether I was finally free to leave.  My visitors arrived four minutes later, before I even had a chance to fish out my welcome sign, a practice that is the stuff of so many comedy scenes.

For those not experienced dealing with police as criminal defense lawyers or as First Amendment defense lawyers, it would have been too dicey to have talked to them at the airport.

Silence is golden.  

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