Arm yourself with truth, justice and the American way
By Carolyn Carlson
One warm late May evening, DC and some friends headed Downtown to hit a few bars and celebrate a friend’s college graduation. He never expected to end up in jail, accused of disorderly conduct. DC is not a stereotypical gangster dude who quibbles with cops just for fun. He is a white, college-educated, 26-year-old Republican who considers himself conservative and pro-law and order. He said he was arrested for what amounts to opening a rear passenger car door and questioning a police officer during a lengthy seat belt violation traffic stop.
According to the police report, the cop said he saw one of the three passengers take his seat belt off as the car pulled in to park behind the Frontier Restaurant. DC sat in the car for few minutes while the officer talked to the driver. DC opened his door to ask why he had to stay in the vehicle and if he could go into the restaurant. Another police officer at the scene decided to go up to the car and deal with him. It was the opening of the car door and the ensuing verbal exchange led to his arrest.
DC says he thought he could ask the officer questions and, since he was not under arrest, was free to go inside the restaurant to eat while the police handled the driver and the seat belt infraction.
DC’s criminal charges were eventually dismissed. He filed a civil suit claiming his First and Fourth Amendment rights were violated by the arrest. [Disclosure: Carolyn Carlson is an investigator with the the Law Offices of Brad D. Hall, which represented DC.] DC did not win his civil case against the police officer, as the jury decided he should have kept quiet and not opened his car door.
“What was important to me is that I stood up for what rights I believed were guaranteed by the Constitution and have a judge hear my case,” he says.
Peter Simonson, executive director of ACLU-NM, talks about the state of civil rights.
Diminishing Legal Turf
DC’s verdict isn’t surprising. Federal judges and juries are tough audiences. Recent rulings show they give the benefit of the doubt to law enforcement, especially if it’s a case of “he said she said” with the police—sometimes even when evidence supports the citizen’s account of the interaction. Since 9/11, people involved in civil rights disputes have tended to lose federal jury trials against law enforcement. There’s been a push for more authority for government searches, seizures, interrogations and detaining suspects. Constitutionally protected civil liberties have been curtailed in the interest of national security. That idea trickles down to Main Street USA and is reflected in the smallest of cases, such as DC’s.
“There has been a diminishing tolerance for expressions outside the mainstream rhetoric about national security and general public safety, which has allowed for the passage of laws like the Patriot Act and SB 1070 in Arizona,” says Peter Simonson, executive director of the New Mexico Chapter of the American Civil Liberties Union. “We have set the stage for law enforcement to have tremendous authority over us. Civil rights cases are hard to win, and it is probably true in general our population automatically trusts law enforcement. And this becomes an issue in civil rights cases.”
People who are arrested often protest that “the police didn’t read me my rights!” They shouldn’t have to; we should all know the basics. Having your rights read to you by a police officer is only necessary in a few situations. Sometimes arrests occur because of verbal and physical interactions and not the underlying situation.
So in this Fourth of July edition of the Alibi, it’s a good time to remember a simple but vital concept: The more we all know our rights, the safer our citizens and police officers, and the healthier our democracy.
What We’re Working With
“I know of no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them but to inform their discretion.”
The Constitution gives us liberties within the first 10 amendments, which are called the Bill of Rights. The most well-known constitutional guarantees include freedom of speech, association and assembly, and the right to be free from unreasonable searches and seizures. We are given the freedom of the press and—one particularly hot political potato—the right to own guns. The framers tried to ensure our freedom of religion by separating church and state. This was also meant to keep any particular religion from running the government with its set of beliefs. We also have the right to equal protection under the law, which translates roughly to equal treatment regardless of race, sex, religion or national origin. We have the right to be free from unwarranted government intrusion into our personal lives, private property and our private business affairs.
Taking It to the Streets
It’s through the police that the Bill of Rights comes in contact with people every day on the gritty streets of America. APD Deputy Chief Mike Callaway is in charge of the department’s field services division. Those are the guys on the street writing tickets and responding to calls. He said officers are given ongoing training in respecting citizen’s civil rights.
Each year, the Albuquerque Police Department answers about a half-million calls for service and issues 24,000 citations. There is an average of 2,100 arrests every month, along with 100 SWAT activations. There are at least a couple hundred search warrants issued annually. These all provide thousands of opportunities for the Bill of Rights to be tested.
When faced with these situations, remember: What you say to police is important.
In the early 1990s, there was a rash of APD officer-involved shootings. A subsequent flurry of civil lawsuits resulted in more nonlethal options for officers faced with armed or dangerous individuals.
“It is always the goal for the situation to end peacefully with no injuries,” says Deputy Chief Callaway.
So how should we behave during a law enforcement interaction so as not to seem threatening and avoid use of force?
The ACLU makes its recommendations based on decades of cases interpreting the Constitution. The organization maintains that politely knowing and exercising your rights is the front line to protecting yourself legally and physically. But it’s almost shocking, says the ACLU’s Simonson, the way the public is willing to turn over what it’s entitled. “These are the rights that create a free society,” he says.
Callaway agrees with the ACLU’s pointers. “It is certainly important for everyone to have an understanding of their own responsibilities in these situations,” he says, especially when a misunderstanding can be fatal or otherwise costly.
Everyone, including minors, has the right to courteous and respectful police treatment. And officers deserve the same from the people they interact with—and even arrest.
A Drive-Thru Primer
Like in DC’s story, citizen-police interactions often happen through a car window. During a traffic stop, you must show your driver's license, registration and insurance if asked by a police officer to produce them. But you don't have to consent to any search of yourself or your car. If you're given a ticket, you should sign it; otherwise you can be arrested. If you disagree with the ticket, ask for your day in court. If you find yourself at one of the many sobriety roadblocks that pop up just around bar-closing time, remember that refusing to take a DUI test—be it blood, urine or breath—may result in a suspension of your driver’s license, and you’ll probably be arrested for a higher charge than if you’d complied.
Warrants, Search and Seizure
“Sittin' and starin' out of the hotel window / Got a tip they're gonna kick the door in again / I’d like to get some sleep before I travel / But if you got a warrant, I guess you're gonna come in.”
Like the song “Truckin” by the Grateful Dead illustrates, a warrant means the police are going to enter your owned or rented property, then search and seize things—including you, possibly. If police have a warrant, they may knock on the door, be professional and courteous, and explain there is a court order allowing a search. Or they may use force that includes paramilitary tactics and dozens of SWAT team members armed with guns and flashbang stun grenades. They’ll descend unannounced through every door or window they can break to look for whatever illegal evidence they think they may find. Luckily, most encounters are closer to the first kind. You do have the right to ask to see the warrant. But don’t actively interfere with or obstruct the police—you can be arrested for that. Don’t make any sudden moves. During any interaction outside of a car, law enforcement officers can pat you down if they reasonably suspect you are carrying a concealed weapon. If you are arrested, the police can search you and the area close by. If it is unclear, ask if you’re under arrest and why.
The ACLU recommends that if you feel your rights are violated, don't try to deal with the situation at the scene. If you have been physically hurt, you can discuss the matter with an attorney after seeing your doctor, or file a complaint with the Internal Affairs Unit or the Police Oversight Commission.
Here we are, 234 years after the Declaration of Independence. Our country is still only beginning to realize the visionary ideals expressed when the founding fathers set up the Constitution and crafted the Bill of Rights. The veracity and scope of our liberties are regularly tested in courtrooms around the country. One local U.S. District Court judge recently upheld the Fourth Amendment and found law enforcement’s entry into one home illegal, even though the officers found child porn there. The judge suppressed the child porn due to the illegal entry. These are tough cases for judges, but it is our Fourth Amendment right to not be subjected to unreasonable home entries and unreasonable searches by cops. That is what the judge defended—not child pornography.
The Fourth of July should be a reminder to everyone that officers and citizens are part of the same democratic fabric. The country is stronger against foreign and domestic threats if we all regularly review our rights and practice them politely but firmly. In Shakespearean terms, conspirators seeking to set up a tyrannical dictatorship quip, “The first thing we do, let's kill all the lawyers.” It’s easier to fool an uneducated population if there are no lawyers, but the better answer is more like Thomas Jefferson recommended: Educate the people about their rights.