How To Survive an Arrest When You Haven't Done Anything Wrong
By James V. Cook
Racial profiling is real. If you're African-American and you're male, the chances are better than even that you will be stopped by law enforcement officers when you haven't done anything wrong. If you're African-American and female, they're only a little better.
In my practice as a civil rights lawyer, some of the most troubling cases have involved the Professor Louis Gates phenomenon: African-Americans, even accomplished professionals, who are arrested or detained based on wrong assumptions that involve police attitudes on race. Sometimes the abusive officers are also Black. However, in many communities, Black law enforcement officers have formed professional groups to protect the civil rights of minorities.
People who are career criminals know how to get arrested without getting hurt. They know how to talk, how to move, using non-threatening, deferential words and body language, how to hold in anger. They may joke with officers and interact in a friendly way, although they know that the officers' intention is to see them spend years in prison.
It is the young, unsophisticated kids and older adults with little experience with law enforcement who often get hurt. Kids may run from police because they are afraid to face parents, relatives, and church members if they are caught doing something wrong. Older adults may show outrage and, when they are innocent, assume that the Constitution protects them in an arrest situation more than it actually does.
The following are my suggested rules for arrestees to get through the experience safely, and then, afterwards, proceed to take effective action to assert their rights.
1. When stopped by police, immediately assume a non-threatening stance. Keep your hands visible as much and as quickly as possible. If you are in your car and your safety belt is fastened and police are asking you to show your hands and step out of the car, say loudly, "My safety belt is fastened. I have to unfasten it." Say what you are doing, and why, while you are doing it. Be aware that there may be video and audio recordings of the incident.
2. Speak clearly at all times. If asked to get out of your car, try to stay in front of the patrol car where a camera is likely to be aimed (but do not disobey officer commands). Be careful not to make statements that antagonize the officer. Keep your voice as calm as possible. Try not to gesture with your hands. Do not try to physically resist being handcuffed. Be aware that if the courts find that the officer had the right to detain you, they will be extremely deferential to the police in decisions to use force prior to your being handcuffed. Be aware that in Florida you have no legal right to resist an arrest, even an illegal arrest, with force.
3. Do not threaten a lawsuit. That is an invitation for law enforcement officers to pile on the charges and make sure they stick. Officers know that the best defense is a strong offense. Wait until the situation is defused, cleared up, or you are arrested and either jailed or freed. Try to contact a civil attorney without broadcasting your actions to law enforcement officers.
4. Try to gather names of witnesses and physical evidence as soon as possible. Keep in mind that people who witness wrongful police behavior may be outraged at first but with time outrage may fade. Have someone get witness statements while witnesses' memories are fresh and their willingness to help is at its height. Be sure no one is told what to say; only that they should include specific details like the date, the time, the place, of the wrongful acts, words that were spoken, descriptions, I.D. numbers, or names of the officers, and the names of other persons who were present. They should tell the story of what they saw in chronological order. Witnesses should an address and phone number. Have lots of pictures taken if needed to document any physical injury or damage. The imprints of too-tight handcuffs will fade in time.
5. If criminal charges are filed against you, try to get those taken care of first. If you enter a no contest plea in order to get the case over with or to "stop having to come to court," that plea may affect your rights to challenge the law enforcement actions in a civil lawsuit. However remember that police have no right to use unreasonable force even if they can prove the charges against you. If you are charged with Resisting An Officer With Violence or Battery on a Law Enforcement Officer, you will probably (but not always) need to win your case to sue. Those charges are often added by officers to immunize them from their wrongful acts.
6. Generally, courts will not let you proceed with a civil lawsuit while a criminal case is going on. If you file it, the civil court will most likely put your civil case on hold until your criminal case is finished. Because some evidence "goes away" like the recordings of the police radio transmissions, it will be best to make sure your criminal lawyer gets hold of those kinds of evidence. If you were arrested in a place where private businesses may have security cameras, like the parking lot of a retail store, make sure that you or your criminal attorney get a copy of the video recordings very quickly before they are recorded over. Remember, your criminal attorney has subpoena power.
7. If you bring a civil lawsuit for wrongful police conduct, you have the burden of proof. You cannot win a civil lawsuit by simply making allegations and making the police prove the allegations are wrong. A civil lawsuit usually means years of work and frequently tens of thousands of dollars in expenses. If your damages are not great, sometimes the best response to police misconduct is to become active in the community helping to ensure that what happened to you doesn't happen to others. Community organizations like the NAACP and the ACLU exist to protect rights. The NAACP now has a Rapid Report System (RSS) on police misconduct. For more information, go to www.naacp.org.
8. As soon as any criminal charges are resolved, file a citizen complaint against the officers who violated your rights. This can be a way that well-intended police administrators can see which officers are acting improperly. Remember that officers who make lots of arrests tend to be rewarded by the police hierarchy. Showing that many of the arrests involved misconduct may be a way to make sure that abusive police officers do not move ahead in the system. When you file a complaint, make sure you and your witnesses follow through with appointments with internal affairs investigators so the complaint isn’t dropped for lack of cooperation.
9. Remember that part of the problem is always political. It is easy for legislators to win votes by taking a tough stand on crime and voicing support of police. Often, those law-abiding citizens who become victims of police misconduct have also been supporters of tough crime legislation. But politicians who are "tough on crime" should also be tough in support of the civil rights of the accused, and be willing to say so in the same breath. It is only the constitutional rights of the accused that the wrongly accused have to rely on.
Most police officers became police officers for the right reasons and try to do the right thing. Some are bullies. In my work, the bad ones have made me really appreciate the good ones. The problem is more that good officers are often hesitant to restrain or to testify against bad officers when they see misconduct. An officer who stands by and permits your rights to be violated when he or she could intervene is also violating your constitutional rights.
A lawyer who used to defend police officers as a major part of his practice once told a group of Tallahassee civil rights lawyers at a seminar on police misconduct, "Almost every improvement in police professionalism has come about as a result of lawsuits by lawyers like you." Good police administrators who want to rein in the abusive practices of renegade officers also need the help of citizens willing to document and fight police misconduct.
James V. Cook is a Tallahassee civil rights attorney and a winner of the 2003 national NAACP "Foot Soldiers’ Award.”