Recently, I attended LibertyCon in Washington D.C. to promote my new book (shameless plug), I Know My Rights: A Children’s Guide to the Bill of Rights and Individual Liberty. While attending, I encountered attendees who were enthralled with the idea of teaching young children their rights as citizens and individuals. Lengthy discussions were had on the importance of such efforts that must be made by parents and siblings, as our schools have failed to make civics a mainstay of our modern curriculum.
Aside from the standard question regarding the Second Amendment, as many seem to feel that current resources do it little justice, one question stood out from a few interested readers: Should children assert their Fourth and Fifth Amendment rights if stopped by law enforcement? The short answer, yes. The long answer, absolutely yes. I was excited to see that this did not turn anyone off to the subject; if anything, it intrigued them further, and some even applauded the idea. However, not everyone I have encountered is open to that idea; it seems that the common theme among Americans is the belief that it is better to comply with law enforcement, primarily because they believe that compliance is required. The reality, however, is that compliance is never required by law, in the absence of a search or arrest warrant, or if an officer can establish probable cause as described by law.
When it comes to interactions with law enforcement, officers are surprisingly limited in their authority. If a driver is pulled over for a traffic infraction, for instance, the officer has the authority to give a traffic citation, which can be challenged later in court. The officer does not have the authority to search your vehicle or interrogate the driver and passengers. If your vehicle contains contraband of some kind, it must be visible to the officer through a window or be otherwise detectable, although some methods, such as the use of dogs, have come under fire in recent years.
Law enforcement officers are trained to ask broad questions, to have you admit to something without realizing it or willfully provide enough information to constitute probable cause. It can also get a person comfortable enough to consent to more invasive measures. The importance of understanding the difference between a question and an order is paramount; if a traffic stop or encounter on the street involves a series of questions, compliance is not necessary and should not be given. If an officer gives a clear and direct order, it is better to comply and challenge their actions in court.
Children are Especially Vulnerable
Over the last several years, there have been several notable stories in regards to children being taken advantage of by the authorities. Children are typically more vulnerable than adults because they are not as well versed on what they are allowed and not allowed to say and do when confronted by law enforcement. Given that civics is our second worst subject, only ahead of history, it is not surprising that a number of these instances have taken place in schools, where our children spend most of their time and are expected to abide by authority.
Most recently, four girls were searched by administrators at East Middle School in Binghamton, New York, on the suspicion that they were “appearing hyper and giddy during their lunch hour.” Both sides have offered different viewpoints as to what happened. The girls in question claim that they were ordered to strip down and were humiliated during the process. School officials acknowledged that the current policy allows them to have students remove outerwear and shoes, but the officials claim that the girls were not strip searched. While New York law may allow such invasions under flimsy circumstances, children still have the right to ask for cause. According to the school officials, the parents of students who are searched are informed after the fact. If children are barred from asking for legal counsel, they should be allowed to have a parent or guardian present, at a minimum. Regardless of whose story is correct, there is no denying that these four girls’ rights were violated by school administrators.
Children are often taught to respect authority; this is not necessarily a negative thing. However, there needs to be a balance of knowledge and respect. Children who consistently bend to authority will become adults who consistently bend. By giving children the ability to discern between lawful stops and unlawful detainment, we are given a generation of adults who can be discerning and who make civil liberties a priority.
Unnecessary Compliance Hurts Necessary Non-Compliance
The hard truth of compliance, whether it is done out of intimidation or a sense of duty, is that it is harmful to the efforts of those who attempt to invoke their rights during interactions with law enforcement. As I have written previously, “An expectation of compliance, rather than law, under which we are protected from such actions, becomes the norm until that sudden, gentle resistance is regarded as a crime.”
For those that are intimidated or afraid when you are pulled over or enter a checkpoint, the best thing that you can do is relax. Here are the simple steps that you can take to assert your rights while protecting yourself:
1. Remain calm, turn off the vehicle, keep both hands on the wheel.
2. Keep your cell phone in the cup holder while you drive, angled so that the camera is facing the window so that it can be turned on quickly. Record everything. If necessary, inform the officer that you are recording this encounter, which is protected under Glik v Cunniffe.
3. Lower the window so that you can hear the officer and the officer can hear you. It is imperative that the officer can hear you speak. NOTE: Not all states require that the window is rolled down, but it is helpful to have it cracked.
4. Ask the officer why you were stopped. If the officer asks you if you know the reason, clearly state “No” and then inform the officer that you are not answering questions. If they continue to ask questions, either remain silent or repeat that you refuse to answer any questions without the presence of legal counsel.
5. Clearly inform the officer that you do not consent to any search of your person or property. This includes your cell phone or other devices.
6. Ask the officer if you are being detained or placed under arrest. If the answer is “No,” inform the officer of your desire to leave. If you are receiving a ticket or citation, take it or have it placed under your windshield wiper, if your window is raised. You do not have to sign the ticket.
7. Always be firm, but be respectful.
Should an officer inform you that you are being placed under arrest, inform the officer that you are invoking your Fifth Amendment right to remain silent and then request an attorney. Comply with the officer’s orders, but remain silent. If you have any passengers in the vehicle, particularly children, ensure that they will remain silent as well; it is not uncommon for an officer to speak with a passenger in an attempt to get more information. Everyone needs to remain silent. Practice this scenario with friends and family; make sure everyone is comfortable with the process. If you prefer not to speak at all, you can print out cards that can be held up to the window with your license that inform the officer clearly of your decision not to comply.
For those that believe compliance is the right thing to do, whether this is out of a sense of civic duty or a need to show respect to law enforcement, carry on. However, consider your actions; each act of willful compliance could create problems for the next person who asserts their rights. If we as a society continue to waive our rights each time we believe that it is necessary or are confident in our lack of guilt, we weaken the integrity of our rights. It changes how each encounter could transpire; the gentle non-compliance could then be seen as resistance.
Peaceful Non-Compliance is Not Anti-Law Enforcement
The reality of non-compliance is far from being anti-law enforcement; it can indeed be viewed as being anti-authority, as our Bill of Rights is very much geared towards restraining authority. The argument that by asserting one’s rights makes an individual offensive, combative, resistant, or a criminal crumbles in the same way that suggesting someone who is anti-war or anti-interventionism is also anti-military. It is possible, to be sure, but one does not always follow the other and in most cases do not. Peaceful non-compliance is merely following the law, as it was written, without malice or contempt.
It could also be seen as being helpful to the officer who has stopped you. In essence, it is giving he or she the benefit of friendly notice; invoking our rights signals to an officer that you are not a person that can be taken advantage of and will force them to abide by the law. By informing an officer of your intent to remain silent, it prevents he or her from asking questions and fishing for probable cause, which could be challenged in court. By informing an officer of your refusal to give consent to search or seizure, it lets the officer know that without probable cause any search or seizure of your person or property will be subject to legal challenge. By informing an officer that you are filming the encounter requires that he or she remain measured and within the confines of the law. Peaceful non-compliance is to the benefit of both parties.
Always bear in mind that asserting one’s rights does not qualify as dissent or disobedience; it is entirely within the confines of the law because it is the parameters that all other laws must follow and under which must function. There is nothing to stop encounters with law enforcement as they are an inevitable part of American life. However, we can do a few things to help as we move forward. We can further educate officers on the rights of citizens and how to handle peaceful non-compliance. We can further educate all citizens, particularly children, and encourage their non-compliance. We can require officers to inform citizens of their rights before proceeding with a traffic stop, rather than after making an arrest. We can end the War on Drugs and the overcriminalization of our society, eliminating black markets and the need to conceal or forcefully resist, making both citizens and law enforcement safer. Interestingly, the majority of these ideas enjoy significant support from the public, including many who strongly support law enforcement.
Support for law enforcement, or tolerance at a minimum, is more than possible while still advocating for reform and peacefully asserting our rights. Like most issues that arise in the political arena, it is stretched in such a manner as to divide Americans on political lines, rather than to engage in real discourse. Until such a rational conversation can take place at local, state, and national levels, we can take it upon ourselves as individuals to educate those closest to us in our communities in order to bring about change.
If you would like to go over the script a little further or are in need of a good laugh, follow the Pot Brothers at Law on social media. They put up daily videos and go through a basic script to use when stopped by law enforcement, telling us what every defense attorney would like us to do, “Shut the f*** up!”
Disclaimer: None of the above may be construed as legal advice from an attorney or otherwise legal expert. Always seek out advice from a licensed attorney in your state or area, as well as your local and state laws regarding these issues.