Injustice is an intrinsic part of life on Earth.

Take that in for a minute.

We’re doing a terrible job of it: climate change, the 6th Mass Extinction, famine, avoidable epidemics, regional wars, political corruption, housing crises and homelessness, despotic governments, organized crime, and human rights abuses.

Thankfully, through social media, alternative news sources, and non-profit organizations, progressive activists are educating the public and motivating political changes, bit by bit. In their efforts to manifest change on a large scale, activists sometimes commit acts of civil disobedience, meaning they break minor laws such as civil infractions or lesser misdemeanors (e.g., protesting on public streets without a license, simple trespass, or illegally camping at City Hall as did the Occupy Movement) in order to achieve the higher purpose of bringing large scale attention to issues that affect society-at-large. Inevitable face-offs with law enforcement and prosecutors are a consequence of civil disobedience. It is in such times that people should know how to properly interface with police and District Attorneys in order to safeguard themselves from bodily harm, uphold their civil rights, and minimize their legal exposure.

“[University of San Francisco Professor Richard Leo] has reported that the Miranda decision, which is supposed to shield suspects from involuntary confessions, generally does not: more than eighty per cent decline their Miranda rights, apparently in order to seem coöperative. He and Richard Ofshe, a social psychologist, have observed what they call “persuaded” false confessions—an innocent suspect, worn down, fabricates a story to satisfy his questioners.” [Emphasis added.]

- “The Interview: Do Police Interrogation Techniques Produce False Confessions?”, Starr, Douglas, Dec. 1, 2013, The New Yorker.

I will point out here various strategies that apply to all interactions with police, prosecutors, and associated governmental enforcement personnel whether they represent the IRS, ICE, DHS, the SEC, DOJ, your state’s Attorney General’s Office, family court mediators, county social workers, child protective services, and so on. I will cumulatively refer to these individuals here as the “enforcers” for such persons represent the 3rd branch of government, the Executive Branch, whose primary job is to enforce the law.

As headline rules:

1. identify yourself;

2. keep quiet;

3. preserve your civil rights by politely stating your objections to searches, seizures, and interrogations;

4. stay polite and do not physically or verbally fight with or argue with the enforcers; and

5. request and/or hire a lawyer immediately.

Identify Yourself

First, it is best to identify yourself to a police officer upon request, including showing the officer your government issued identification card such as a driver’s license. Though there are various laws depending on the city and state and of course the specific location and circumstances (e.g., whether you’re driving, being issued a summons, in public housing, in a bar, or at another regulated situation) regarding whether it is legally required for you to show ID to a cop upon request, what we’re trying to do is reduce the friction of your interaction with the police. Carry your ID, and provide it to the cop upon request.

Keep Quiet

Second, keep quiet. It’s best for you to not talk much when interacting with an enforcer. When I’m representing a client, I typically instruct them to not talk at all and to let me do all the talking. You never know if you’re going to say something that compromises your case, and you never know what mood the enforcer is in! It’s best to err on the side of caution and remain silent especially in an era of ever-increasing police militancy and brutality. It’s your right to stay silent, and it’s a great idea.

“You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.”

- Your Rights under Miranda vs. Arizona, USSC (1966), as clarified by US v. Plugh, USCA 2d. (2011).

Politely State Your Objections

Third, if an enforcer wants to search or seize you or your property, and if you believe such search and seizure is in any way wrongful, you can so state that you object to it. For example, if a cop wants to wrongfully arrest you, wrongfully puts you in an arm-hold, choke-hold, or other restraint, wrongfully points his gun at you, screams and curses at you, and/ or otherwise treats you in a manner that is wrongful and a violation of your civil rights, it is best to politely and calmly comply with such arrest requests rather than to verbally or physically fight back, no matter how wrongful and upsetting the cop’s behavior may be. Remember: he’s armed to the teeth!

After you have been arrested, you can file any objections to the method of your arrest via legal complaints to the police department and the courts. The time of your arrest, however, is not the proper time to fight with the officer, nor is it a time to demand answers to questions from the officer as to why you’ve been arrested or why you’ve been wrongfully treated. This can simply exacerbate the situation with what may likely be a rogue and violent cop, and you want to avoid that of course.

When dealing with searches or seizures of your property, including of your pockets, bags that you’re carrying, your car, storage space, RV, mobile home, house, or business, you can politely state your objections to any such searches or seizures, e.g., “I object to this unlawful search and seizure of my property, and I do not give you permission to do so.” You should request to review a copy of a warrant for such search and seizure, especially if it involves entry into your house or a business that you own. However, you should not fight verbally, physically, or in any other way with the enforcers, for this may lead to you being arrested and charged with resisting arrest or similar crimes which can further complicate the initial matter which led to your interaction with the police in the first place.

Keep Those Smart Devices Locked

If the police ask you to unlock your smartphone by entering your security code or using other biometric virtual keys such as face or iris recognition or fingerprint ID, however, you may refuse to do so; but be warned, this is a developing and edgy area of the law with few decisions on the record regarding this right under the 5th Amendment protections against self-incrimination. If you do refuse to unlock your smartphone, computer, or other digital device under such circumstances, don’t be surprised if you need to uphold your right to do so via strenuous litigation in court at the appellate level! I applaud the recent efforts people have taken to strengthen our civil rights under the 5th Amendment of the US Constitution in regards to legally fighting police attempts to force people to unlock their smartphones. Our civil liberties and protections have been crafted over the history of our nation by exactly such freedom loving people, and we owe them more than our thanks: we need to stand up for our civil rights!

“Taking photographs, video, and audio in public spaces is a constitutional right — and that includes law enforcement officials carrying out their duties.”

- “The Right to Record Police Doesn’t Disappear When You Put Your Phone in Your Pocket”, ACLU of Massachusetts, Rose, Carol, Dec. 14, 2018.

Hire A Great Lawyer

Finally, the most important and best thing you can do in any interaction with an enforcer is to hire a lawyer at the first sign of any problem, even as soon as you believe you might be encountering the police or other enforcer soon for some reason, or if you suspect something is awry in your personal or business life that may lead to some legal concerns! For example, in a perfect world, if the “Central Park Five” were able to afford and have lawyers present during their interactions with the police and ensuing illegal interrogations, they very well could have avoided their wrongful convictions. Watching “When They See Us”, Ava DuVernay’s intense docu-drama about the Central Park Five’s tragic story, I was most upset by exactly such illegal interrogations that happened in the first of this 4-part mini-series. I wished I could have been present there to help protect the civil rights of these kids.

Remember, you are not required to answer any questions in any interaction with the police, prosecutors, or other governmental enforcers, and you are permitted to consult with an attorney at any time. It is in your best interest to do exactly this. Cops, prosecutors, and other enforcers will play all sorts of mind games (e.g., good cop/ bad cop; false stories of supposed evidence and witnesses pointing to your guilt; or pressuring you to consider the consequences you face if you don’t play ball with them and are convicted of the alleged crime) and make all sorts of false threats and promises (e.g., reduced sentences; you get to go free if you cooperate; you’ll make things worse for yourself if you don’t cooperate) to encourage you to talk to them without an attorney: don’t believe a word of it!

The Infamous “Reid Technique” of Interrogation: 9 Step Process

“1. Direct confrontation. Advise the suspect that the evidence has led the police to the individual as a suspect. Offer the person an early opportunity to explain why the offense took place.

2. Try to shift the blame away from the suspect to some other person or set of circumstances that prompted the suspect to commit the crime. That is, develop themes containing reasons that will psychologically justify or excuse the crime. Themes may be developed or changed to find one to which the accused is most responsive.

3. Try to minimize the frequency of suspect denials.

4. At this point, the accused will often give a reason why he or she did not or could not commit the crime. Try to use this to move towards the acknowledgement of what they did.

5. Reinforce sincerity to ensure that the suspect is receptive.

6. The suspect will become quieter and listen. Move the theme of the discussion towards offering alternatives. If the suspect cries at this point, infer guilt.

7. Pose the "alternative question", giving two choices for what happened; one more socially acceptable than the other. The suspect is expected to choose the easier option but whichever alternative the suspect chooses, guilt is admitted. As stated above, there is always a third option which is to maintain that they did not commit the crime.

8. Lead the suspect to repeat the admission of guilt in front of witnesses and develop corroborating information to establish the validity of the confession.

9. Document the suspect's admission or confession and have him or her prepare a recorded statement (audio, video or written).”

- The Reid Technique of Interrogation

A good attorney can properly advise you as to your rights, can assess the strengths and weaknesses of your case, can help you prepare the best defense as early as possible, and can rigorously effectuate that defense from the get-go. A good attorney should not leave any stones unturned in defending your matter and ensuring that your civil rights have been upheld at all stages of the process.

What They Don’t Tell You About Plea Bargains

Enforcers hate it when you lawyer-up, and they’ll tell you all sorts of lies to prevent that from happening, telling you that it will simply lengthen the process and invariably produce no different results if you hire a lawyer, that it will make you look guilty and result in worse punishments for you, or that they will add more charges and allegations against you if you don’t cooperate with them! Enforcers are ruthless when they are desperate, and more often than not they don’t have the manpower and funds to prosecute every case. That’s why they love plea bargains, where defendants will agree to accept convictions based on usually questionable evidence simply to avoid the mere threat of further prosecution! When we know that about 95% of criminal defendants accept plea bargains and never have an actual trial on the merits of their case, it tells us that too many people who are accused of a crime are not getting good legal representation by a strong criminal defense attorney and instead are being railroaded by a system that favors the enforcers. This is wrong on every level!

“More than a quarter of the 365 people exonerated in recent decades by the nonprofit Innocence Project had confessed to their alleged crime. Drawing on more than 30 years of research, [John Jay College Prof. Saul Kassin] told the legal team how standard interrogation techniques combine psychological pressures and escape hatches that can easily cause an innocent person to confess. He explained how young people are particularly vulnerable to confessing, especially when stressed, tired, or traumatized.”

- “This psychologist explains why people confess to crimes they didn’t commit”, Starr, Douglas, June 13, 2019, Science Magazine.

You Are Your own First Defense

You are the most important part of making sure your civil rights are upheld. This brief outline is meant to help you to do just that. Be smart. Be strong. Stand up for your rights!

The ACLU and other organizations provide additional information to help you know your rights when you encounter the police and other enforcers. If you are part of a non-profit community organization looking for further information about protecting your civil liberties, you can reach out to me, the National Lawyers Guild, the ACLU, or other civil rights organizations for help on informing you and your constituents about their legal rights in the face of the enforcers. It would be my pleasure to speak with you!